Testaments as Historical Documents Papers from the 17thCongress of the Commission Internationale de Diplomatique
stockholm 2025 GRUNDAT AV GUSTAV OCH CARIN OLIN The Olin Foundation for Legal History INSTITUTET FÖR RÄTTSHISTORISK FORSKNING
The depicted medal of Johan Stiernhöök, engraved by C. M. Mellgren, was made on behalf of the Swedish Academy in 1837 Printing & Binding Tallinna Raamatutrükikoja oü, Tallinn Picture Editor Baltasar Aguirre Graphic Design & Illustrations Pablo Sandoval Cover Picture A Swedish original testament on parchment dated 16 July 1299. Nils Sigridsson lists his gifts to churches, monasteries and indivduals. Five men are named as testamentary executors © National Archives, Stockholm (SDHK 1840) –photo: National Archives Publisher The Institute for Legal History Founded by Gustav & Carin Olin box2298, 103 17 Stockholm e-post: info@olinfoundation.com www.olinfoundation.com isbn 978-91-86645-22-9 issn 0534-2724 Order & Distribution Jureab. Artillerigatan 67 114 45 Stockholm tel + 46 8 662 00 80 e-post: order@jure.se www.jure.se Editors Claes Gejrot, Kurt Villads Jensen, Kirsi Salonen & Benoît-Michel Tock
RÄTTSHISTORISKA STUDIER Band 33
Testaments as Historical Documents Papers from the 17thCongress of the Commission Internationale de Diplomatique
Preface Editors: Claes Gejrot, Kurt Villads Jensen, Kirsi Salonen & Benoît-Michel Tock
preface 9 hisvolume assembles papers presented at the 17th Congress of the Commission internationale de diplomatique (cid). The congress –Tes1 In the English articles of the book, the terms “will” and “testament” will generally be used, unless otherwise specified, without intending any real difference in meaning between them. Ttaments as Historical Documents – was organised in Stockholm on 20–22 September 2023 by the CIDin close co-operation with the Centre for Medieval Studies (Stockholm University) and the Swedish National Archives. Today, a written will or testament1 is the accepted legal form for persons expressing their wishes as to how their property is to be distributed after their death. The practice of making a will seems to be in use more or less all over the world, and it has been so for a very long time. The concept of a testament is universal; the CIDwith its members at this meeting chose to focus on the European Middle Ages and the early modern period. Twenty-seven papers were presented from different angles and perspectives and they are all published in this volume. The days in Stockholm proved that the testament as a document can be used as a basis for scientific studies in many ways. TheCIDwishes to promote studies on the form of the written acts, their elaboration and their use, and it is evident from the articles in this book that diplomatics and all kinds of formal aspects involved in the writing of wills are central questions. It is also quite natural that many of the articles treat and compare a variety of legal procedures and implications. Testaments can vary in form and content even in neighbouring countries and regions, and a number of geographical differences can be seen in this volume; there are as well some fundamental recurring similarities. The subjects treated in the book are many and varied. Some articles treat testaments of noblemen, others the work of public notaries who composed testaments for others but also for themselves. Still others dis-
preface cuss pilgrims’ wills (sometimes of an illegal nature) issued by members of religious orders. Women’s testaments in Denmark and parts of the German Empire are investigated, as are royal testaments in Portugal, England, France, and elsewhere. Several articles focus on specific regions, for instance Scandinavia, Wales, the Asturias, Catalonia, Portugal, the Czech lands, some German towns, and the border regions of Germanic and Slavic areas. The testamentary practices at the comital court in Flanders and Hainaut also enter into focus. Furthermore, a testament can be a tool for understanding individual persons and everyday life in all layers of society. The wills issued by the rich and powerful can be revealing, but testaments preserved from ordinary farmers or burghers can be just as interesting and rewarding. For instance, we learn how the lives of Swedish servants can be studied through medieval testaments, and they can also be used as a tool to understand gender differences and mortality rates. On an individual level, we come to learn how a bishop of Valencia drew up his informative will in 1288 with a notary present. Many other such examples are to be found in this volume. A number of articles treat testaments in relation to diplomatics and legal aspects. We follow the development of certainformulae andclausulae that are typical of the genre, and we learn about the roles played by testamentary executors. The difference between a testament and adonatio mortis causais pointed out. We meet bishops who present petitions to the pope in order to claim their rights to issue testaments. Certain types of archival depositories are also discussed: monastic, episcopal, and municipal and royal archives in various countries can be compared. We learn how testaments as legal acts transform from being memorial records of oral declarations to dispositive deeds, for instance in the Czech lands. An analysis of the diplomatic form and content of 16th-century testaments issued by Spaniards in the new colonies of America can give us insight into the practicalities in administering new and far-away territories. Much more can and should be said about the scientific results found in these articles, and a final chapter in this book presents some further thoughts and conclusions. 10
preface The Stockholm congress was made possible through funding received fromRiksbankens JubileumsfondandRiksarkivarien Ingvar Anderssons fond. We are grateful to the National Archives and its director, Karin Åström Iko, for hosting the event in Stockholm. The editors are also grateful to Christian Lovén who first suggested last wills and testaments as a theme, arising in a fruitful discussion with Stockholm medievalists in 2021. Thanks also to Fraser Miller, Erik Alm, and the members of the staff of Medieval Source Editions at the National Archives for their assistance and presentations during the congress. The editors wish to thankInstitutet för rättshistorisk forskning for including this volume in their series Rättshistoriska studier. Claes Peterson has been a very helpful contact during the process. Riksarkivarien Ingvar Anderssons fond has generously contributed also to the printing of this volume. Aspecial thanks must be reserved for Robert Andrews who checked and improved the English texts and proofread the bibliographies. 11 Stockholm, Bergen & Strasbourg in july 2024 claes gejrot, kurt villads jensen, kirsi salonen & benoît-michel tock
Contents
Preface mark mersiowsky Late Medieval Wills in Southwest German Imperial Towns (1250–1500) anja thaller Testaments of Noblewomen in the Holy Roman Empire (13th–15th Centuries) reinhard härtel Last Wills in the Border Area of the Roman, Germanic, and Slavic Worlds (9th–13th Centuries) karl borchardt Testamenta religiosorum– Illegal Charters? peter erhart “As it is certain that you will come to death” – Last Wills before Leaving for Rome anders leegaard knudsen Women as Issuers of Testaments in Medieval Denmark kirsi salonen Papal Administration and the Rights of Clergymen to Make a Last Will in the Medieval Diocese of Turku cristina mantegna “Volo et instituto”: A Journey through the Dispositions in Northern Italian Wills from the Early Middle Ages 8 18 54 80 104 126 148 166 182 testaments as historical documents 13
202 220 236 258 274 300 324 358 contents marta calleri & marta luigina mangini The Forms and Functions of Notaries’ Wills in Central and Northern Italy (13th–15th Centuries) francesca macino The Will of the Testator and theclausula “rebus sic stantibus” in the Late Medieval and Early Modern Period: A Path between Doctrine and Practice saul antónio gomes The Wills of the Kings of Portugal between the 12th and 14th Centuries maria joão oliveira e silva The Formularies of Medieval Portuguese Testaments through the Study of a Monastic Archive maria helena da cruz coelho Wills and Testamentary Executors in Medieval Portugal marie bláhová Testaments in Přemyslid Bohemia annika björklund Servants in Medieval Swedish Testaments janken myrdal Testaments as a Source for Everyday Life 14 & maria do rosário morujão
384 406 424 444 472 492 516 contents olivier canteaut Facing Death at the Royal Chancery. A Comparative Approach to the Testaments of French and English Kings (Late 12th–Late15th Centuries) miguel calleja-puerta Wills from the Cathedral Archives of León and Castile, c. 1150 – c. 1250 huwpryce Oral Bequests and Written Wills in Medieval Wales thérèse de hemptinne Testamentary Practices at the Comital Court in Flanders and Hainaut during the Long Thirteenth Century mª milagros cárcel ortí The Will of Jaspert de Botonach, Bishop of Valencia (1276–1288) diego belmonte fernández Lords Spiritual and Temporal: Testaments in the Crown of Castile, Fourteenth to Fifteenth Centuries ricardo seabra Notarial Last Wills and Testaments from Medieval Porto (13th to15th Centuries): A Diplomatics Approach 15 & els de paermentier
contents maria cristina cunha Some Remarks on Last Wills at Guimarães (Portugal) in the 13th and14th Centuries maría josefa sanz fuentes & Asturian Wills during the Thirteenth and Fourteenth Centuries: Tradition and Renewal daniel piñol-alabart Clauses, Formulas, and Texts in Catalan Testaments from the Twelfth to the Fifteenth Centuries maría luisa domínguez-guerrero Sorting the Deceased’s Assets in the Spanish Colonies (c. 1550) benoît-michel tock & kurt villads jensen Conclusions authors and editors 16 534 556 580 602 622 632 guillermo fernández ortiz
Testaments as Historical Documents
testaments as historical documents 18 Mark Mersiowsky Late Medieval Wills in Southwest German Imperial Towns (1250–1500) Professor Dr. University of Stuttgart
edieval willsfrom German towns have long been a topic of research, but few studies have been made on the diplomatics of municipal wills. A comparison of the holdings of three large imperial city archives in the German southwest, Ulm, Esslingen, and Reutlingen, with very unevenly distributed transmission of wills, reveals a vibrant world. Very different rights applied in the imperial cities, since the legal framework for wills was also quite individual. The forms of late medieval wills were determined by local as well as individual circumstances. Typical Central European document forms were used in each town: a sealed deed, notarial instruments, achirograph, and hybrid forms, on parchment or paper. For dispositions of property outside the city of Ulm other forms were possible. The form of the notarization was adapted to the legal requirements of each legal transaction. In addition to wills secured by documentary forms, there were unofficial handwritten wills. Copies of the wills in various forms for unspecified purposes, and certified copies in the form of avidimus provided with a credible seal, have been preserved. The archives of Ulm families also have drafts of wills with numerous deletions and additions. Different hands were involved, inserting formulary passages, clarifying individual provisions and adding details, and noting the corroboratio and the date. The drafts were placed in the town registry for the creation of deeds by scribes there. The wills were part of a larger context of documents with different functions, which we can observe as written documents accompanying the wills. It was certainly not yet time for a uniform administrative act, but depending on the situation and purpose, the medieval document system was flexible. It could be put to the test, particularly when complex problems among different legal systems were to be settled. mark mersiowsky 19 M Abstract
late medieval wills in southwest german imperial towns In many areas, including writing, the medieval city was often much more advanced than the countryside or the nobility. From the 12th century onwards, organized coexistence in confined spaces, assertion against enemies, and internal conflict resolution increasingly made use of written documents. In many areas, the cities with their various emerging institutions became laboratories and fields of experimentation for administration based on the written word.1 Therefore, a discussion of urban wills should not be missing from our investigation of wills.2 Medieval wills from towns in present-day Germany have long been a popular topic of research.3 Since the 19th century, important studies, works on regests, and even editions have been published about the wills of cities such as Lübeck,4 Rendsburg,5 Kiel,6 Mölln,7 Hamburg,8 Burg on Fehmarn,9 Rostock,10 Stralsund,11 Lüneburg,12 Brunswick,13 Göttingen,14 Osnabrück,15 Cologne,16 Frankfurt,17 Leipzig,18 Nuremberg,19 Regensburg,20 Worms,21 20 1 Cf. Mersiowsky et al. 2018; Mersiowsky 2018. 2 Cf. Brandt 1973; Wacke 1997; Ogris 1998; Kümper 2010. 3 Mol 1994; Gladen 1996; Richard 2006. 4 Brandt 1964, 1973; Meyer 2009. Cf. Loose 1980; Hölzel 1988; Wunder 1991; Rüther 1996; Dronske 1998; Meyer 1998; Nagel 1999; Noodt 2000; Meyer 2005; Jaacks 2005; Bieberstedt 2007; Rüther 2007; Dormeier 2008; Meyer 2010; Dormeier 2011; Dormeier 2012; Förster 2015; Förster 2017; Nalbach 2022. 5 Bongermino 2020, pp. 40–42. 6 Bongermino 2016; Bongermino 2017. 7 Selzer 2020. 8 Kalckmann 1883; Koppmann 1883; Loose 1980; Riethmüller 1994; Bongermino 2014. 9 Bongermino 2020, pp. 42–44. 10 Bongermino 2020, pp. 33–40. 11 Cf. Schildhauer 1981; Schildhauer 1988a; Schildhauer 1988b; Schildhauer 1989; Schildhauer 1991; Schildhauer 1992; Schildhauer 1998a; Schildhauer 1998b; Lusiardi 2000; Bettin et al. 2003; Schildhauer 2005; Bettin 2016–2017. 12 Reinhardt ed. 1996. Cf. Reinhardt 1997; Mosler-Christoph 1998; Weidemann 2012. 13 Mack 1988–1995. Cf. Piper 1960; Weglage 2011; Steinführer 2015; Steyer 2021. 14 Boockmann 1983. 15 Queckenstedt 1991. 16 Kuske 1923; Baumeister 1953; cf. Aders 1932; Klosterberg 1995. 17 Euler 1858. 18 Berger 1994; not accessible Miethe 2005. 19 Meyer 1999. 20 https://www.uni-regensburg.de/philosophie-kunst-geschichte-gesellschaft/forummittelalter/forschungsstelle-regensburger-stadtgeschichte/index.html; cf. Kolmer 1989; Hartinger 1993; Paringer/Richard 2005; Richard 2010.
mark mersiowsky and Konstanz.22 Since the early 1950s, wills have attracted increasing interest, but primarily in investigations of social and cultural historical questions.23 Furthermore, classical legal history studies deal with wills and inheritance law.24 However, there seem to have been no studies made on the diplomatics of municipal wills. Important preliminary work can be found in the introductions to editions and regests and in some dissertations.25 Late medieval diplomatics in Germany have indeed been neglected in research; there is no useful overview of the multitude of deeds, deed forms, and other types of business records which constitute the bulk of the late medieval archives. In the rich literature on wills, diplomatic studies in the proper sense are rather exceptions. For the treatment of municipal wills, I have undertaken a comparison of the holdings of three large imperial city archives in the German southwest: Ulm, Esslingen, and Reutlingen. Imperial cities are cities whose lord was the king or emperor and which therefore enjoyed relatively greater freedom and a considerable degree of autonomy.26 In furtherance of this status, at an early stage they created an administration and established archives. The three archives are of different rank, although all three towns were rich trading and commercial towns. Esslingen and Ulm date back to the Carolingian period, Esslingen with a pilgrimage site in the possession of Fulrad of Saint-Denis, Ulm with a Carolingian palace. Reutlingen, on the other hand, is a town below the Achalm, a large imperial castle of the 11th century. All became imperial cities in the 12th and 13th centuries and each even formed its own small territory. Ulm was the supra-regional capital, Esslingen the regional capital, Reutlingen a medium-sized imperial town. All three possess extensive, old archives with large medieval holdings. Upon the dissolution of the Old Empire in 21 Emmerich 2009; Kleinjung 2009. 22 Baur 1989. 23 Brandt 1973; Boockmann 1983; Zahnd 1988; Signori 1997; Guzzetti 2007; Rüther 2007; Kloerss 2012–2013; Pajcic 2013; Schmitz 2014–2015; Maass 2018. Loose 1980; Hartinger 1993; Tappe 1996; Bettin-Volksdorf 2003; Favreau-Lilie 2005; Steinführer 2015; Dormeier 2019. 24 Cf. Arnold 1965; Heuser 2002; Seif 2005; Schmidt-Recla 2011. 25 Schulz 1976, pp. 11–18; Bongermino 2020, pp. 61–105. 26 Selzer 2019. 21
late medieval wills in southwest german imperial towns 1803/06, the imperial cities also fell to the new lords, the kings of Württemberg, who took all the archival records important for their purposes and integrated them into the state archives.27 The transmission of wills is very unevenly distributed. In the Reutlingen City Archives, whose two volumes of documents published in recent years contain almost 2000 documents,28 there are just 2 wills and 6 testamentary foundations before the year 1500. In Esslingen, the number of wills is considerably higher; after looking through the various ordered and unordered holdings, I found about 40 wills. In Ulm, on the other hand, there are about 70 wills and many more similar documents, which will be discussed later.29 This varying transmission was caused by certain factors. In the early modern archival inventories of Esslingen, whole drawers of documents full of wills are still mentioned; they were arranged alphabetically: 61. Testamenten A.B.C.D.E.; 66. Testamenten F.G. H.I.K.; 71. Testamenten L.M.N.O.P.; 81. Testamenten V.W.X.Y.Z.30 Unfortunately, we do not know how old they were. All these documents have been lost. There were many more wills in Esslingen and Reutlingen, but in the course of the early modern period and once again in the 19th century they were cancelled, i.e. thrown away by the archivists as useless. In the city archives of Reutlingen, this development can even be proven in concrete terms. In the records of the late 16th century there is a bundle of documents from 1579 which are stapled with strips of parchment. If one looks at these more closely, a 14th-century document in German was used as a strip; it is the oldest Reutlingen will, maculated already in 1576.31 Each of the three towns had its own town law and jurisdiction based on sovereign privileges. Canon law had precise regulations for wills.32 Very different rights applied in the imperial cities, as the legal framework for wills was also quite individual.33 In Ulm, on 14 April 1367, precise re27 Cf. Halbekann 2007; Litz 1997; Breyvogel 2013. 28 Kreutz ed. 2019; Deigendesch et al., ed. 2023. 29 The figures are provisional; the search continues. 30 Stadtarchiv Esslingen 23 III 11. 31 Stadtarchiv Reutlingen, A 1 Nr. 14246. 32 Rigaudeau 2020; Rigaudeau 2021. 33 For comparison Schmidt-Recla 2011; Bongermino 2020, pp. 44–60, 105–107 for the different practices in the region under Lübeck law. 22
mark mersiowsky gulations were decreed about legacies and wills of Ulm citizens. Testamentary dispositions of those in good health or on a sick- or deathbed were regulated. Dispositions of those in a healthy state were to be made in the presence of at least two judges of the city of Ulm. In the event of illness or imminent death, at least two judges of the city of Ulm should be summoned and the disposition then made in their presence. The judges must then confirm in their oath that the person concerned was in full possession of his or her mental faculties at the time in order that these dispositions become legally valid. If a man or a woman, who may or may not have children, wishes to divide his or her property on his or her sickbed or in good health, the will must be made before at least two judges of the city of Ulm, and here, too, the judges must confirm that the testator is in full possession of his or her faculties. The minimum age for making a will is 18 years for men and 16 years for women.34 On St. George’s day in 1422, the mayor, small council, and large council modified the existing statutes, since different information from different judges was given to secular and clerical priests who were citizens or residents of the city; different rules about donations for the soul or prescribed legacies; and different determinations by decree before judges according to the Ulm statutes, by public instruments, or by charters corroborated by a prelate’s seals. These different practices caused problems and confusion. For the new regulations, the city referred to the rights granted them by King Albrecht. For properties in the city, the clergy needed to submit to the regulations of city law, i.e. to make a testament in presence of the two judges, to have this attested by a public notary, and to have a German-language notarial instrument executed over it. Anotarial instrument without the participation of judges was not permitted and therefore not legally valid. This regulation has been preserved in a draft with a later date.35 A document of 1436 mentions that the city of Ulm had forbidden the financing of stipends for the Mass and donations for the souls using properties or incomes in the city’s territory, 34 Stadtarchiv Ulm A Urk. 404, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex541 35 Stadtarchiv Ulm, A 1311. 23
late medieval wills in southwest german imperial towns which is why in this case the executors of the will were to sell the goods intended for the Mass in the city of Ulm and in Mähringen and to acquire other goods and incomes for the financing of the Mass from the money thus obtained.36 The participation of the judges demanded by the city of Ulm served to control property transactions in order to prevent too many houses and estates from falling into ecclesiastical hands and becoming exempt from taxation. This is probably the motive for the control and the role of the city in wills. The most important diplomatics expressions of these demands were the witnessing and co-signing by the judges. For Reutlingen, a new inheritance law was documented on 16 June 1500 by a privilege of King Maximilian that has been preserved in the original. It mainly regulated what happened when citizens died without a will. Inheritance distributions were to be entered into the city books of the city of Reutlingen.37 Wills have been preserved in all three imperial cities, usually in original form.38 Notarial registers or special town books in which wills could or even had to be entered39 do not exist in these three towns, although Maximilian’s privilege for Reutlingen provided for an entry in the town book for inheritance distributions.40 The relevant customs and rights of the town provided the framework for the forms used for the wills. Most wills are sealed documents. Typical forms were used in each town. In Reutlingen, the wills were drawn up as deeds of judges and sealed with the common seal of the town. The judges speak in the first person plural, while the provisions of the will are referred to in the third person. The deed was usually written by the town clerk.41 In Esslingen, the deed 36 Stadtarchiv Ulm A Urk. 1524, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex3041 37 Deigendesch et al., eds (2023) Nr. 783 pp. 592–597. 38 Stadtarchiv Ulm, A Urk. 1734, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex3258(1448); Stadtarchiv Ulm, A Urk. 1798, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch. net/php/ main.php?ar_id=3766#412055726b2ex3326; Stadtarchiv Ulm A Urk. 2241, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php?ar_id=3766# 412055726b2ex3773 (1469) 39 Wüller 1996; Rabeler 2014. 40 Deigendesch et al., eds (2023) Nr. 783 pp. 592–597. 41 E.g. Stadtarchiv ReutlingenU820. 24
mark mersiowsky is drawn up by the testator in subjective form. The involvement of the town is manifest in the request for sealing with the town’s judge’s seal. Nevertheless, the town clerk also is the scribe.42 As in Esslingen, the will in Ulm is issued in subjective form by the testator. In accordance with the Ulm regulations on the need for two sworn Ulm judges, they are named both as witnesses and are requested to seal. The sealing was then done by the testator with his seal or by someone who sealed for him or her, as well as by the two judges, each with their private seal. In addition to these three seals, other persons, such as the pastor of Ulm, could also seal the document if their participation or consent was required.43 In addition to the sealed deeds, there are also the notarial instrument as well as hybrid forms of notarial instruments with the notary’s signet and signature, but additionally with seals of the maker and witnesses. In Ulm, these were then often the two required judges or other persons involved in the legal transaction.44 There are also Ulm wills without the participation of judges. The Ulm citizen Hartmann Ehinger prescribed annual payments for certain purposes; he donated his entire property in Gerlenhofen for this purpose. His sons Johann and Hartmann, his daughters Anna and Ursula, as well as a son-in-law, the Nördlingen citizen Heinrich Frickinger, gave their consent and sealed the document along with the testator. It is a subjectively drafted private document with a seal and co-sealing without the involvement of the municipal authorities of Ulm.45 Outside the city of Ulm, therefore, other forms were possible for dispositions of property.46 It is particularly instructive when the same person uses different forms. 42 E.g. Stadtarchiv EsslingenKHU930. 43 E.g. Stadtarchiv Ulm, A Urk. 236. 44 E.g. Stadtarchiv Ulm A Urk. 1524, Digitalization and regest at https://www.stadtarchivulm.findbuch.net/php/main.php?ar_id=3766#412055726b2ex3041; Stadtarchiv Ulm A Urk. 2752, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/ main.php#412055726b2ex4282. 45 Stadtarchiv Ulm, A Urk. Veesenmeyer Nr. 78. 46 Reference should also be made here to Stadtarchiv Ulm A Urk. Veesenmeyer Nr. 399. 25
late medieval wills in southwest german imperial towns 26 © PHOTO: MARK MERSIOWSKY
mark mersiowsky 27 figure1: Will of the city of Reutlingen: deed of judges sealed with the common seal of the town, Stadtarchiv Reutlingen U 820.
late medieval wills in southwest german imperial towns 28 © PHOTO: MARK MERSIOWSKY
mark mersiowsky 29 figure2: Will of the city of Esslingen: subjective form of the testator, sealed by the town’s judge’s seal Stadtarchiv EsslingenKHU930.
late medieval wills in southwest german imperial towns The will of Walburga Schmid of Diessen, a resident of Ulm, disposed of her properties on 11 June 1481 in the form of a deed witnessed and sealed by the judges of Ulm.47 Shortly afterwards, she decided on her estate, the payment of her funeral costs, and the distribution of the remaining sum in the form of a notarial instrument, in which the judges were named as witnesses and sealed it.48 In this way, the form of the notarization was adapted to the legal requirements of the respective legal transactions. Extensive wills could also be drawn up in the form of a libellus, i.e. a parchment booklet consisting of several double leaves. In such a case, the sealing was done through the center fold of the layer, so that not only the binding threads but also the sealing held the booklet together.49 If several parties were affected by the will, several copies of the will with the same wording were distributed to the various parties.50 In addition to wills secured by documentary forms, there were unofficial handwritten wills. In some cases, we learn from the documentary records that such handwritten wills were brought by the testator when public documents were drawn up and read out in front of witnesses, and then composed into a public instrument.51 The Ulm holdings contain several such wills, probably written in the testator’s own hand, in both Latin and German. The will of Konrad Kraft, the pastor of Ulm, is constructed in individual articles like an inventory. At its beginning, reference is made to the fact that the will was written by the priest’s own hand, and in case of non-observance, the offender is threatened with condemnation. At the end, there is another clause which, should the form not satisfy the legal requirements, emphasizes the inviolability of the will, 47 Stadtarchiv Ulm A Urk. 2611, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php#412055726b2ex4135. 48 Stadtarchiv Ulm A Urk. 2491, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex4023. 49 Stadtarchiv Reutlingen A 3 Nr. 359. 50 Stadtarchiv Reutlingen, A 2 Nr. 1088; the passage is not mentioned in the regest Deigendesch et al., eds (2023) Nr. 370 p. 274. 51 Stadtarchiv Ulm A Urk. 2188, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex3720; Deigendesch et al., eds (2023) Nr. 668 p. 510; Stadtarchiv Reutlingen A 2 U 818 and A 3 U 151. Cf. on this phenomenon Szende 2001. 30
mark mersiowsky as well as appoints the the executors. A German translation was inserted by the same hand, but in a different script.52 The municipal repositories of the imperial cities usually contain copies of wills in various forms, now and then also copies, which were often made for unspecified purposes. In addition, there were certified copies in the form of avidimus provided with a credible seal, such as the will of Elisabeth Löw dated 23 January 1466, which was confirmed by the abbot of the Premonstratensian monastery of Weißenau.53 In Ulm, however, in addition to the municipal records, we can take a look at the archives of Ulm families, often so-called patricians. Here, in addition to copies,54 there are also drafts of wills, which can be identified as such by numerous deletions and additions. They are often several pages long and were created with ample margins for additions and corrections.55 Different hands were involved in these drafts, as can be seen particularly well in the example of the draft of the will of Tahis Ehinger in 1498. While formulary passages were inserted, another hand, which with its somewhat stiff and uncertain hand is perhaps that of the testator, clarified individual provisions and added details. A third, professional hand noted the corroboratio and the date, probably at the time when the legal act was performed.56 If one compares wills that are close in time paleographically, the scribal hands of different testators are the same.57 This 52 Stadtarchiv Ulm A 4615 Nr. 3: undated testament of Konrad Kraft in Latin. 53 Stadtarchiv Ulm A Urk. Veesenmeyer Nr. 360. 54 So for the foundation of the perpetual mass by Ludwig Kraft 1412, Stadtarchiv Ulm, A 4615, Nr. 4 in Latin and German; for the Baustetten parish rate Stadtarchiv Ulm, E Neithardt Akten Nr.211,early modern copies of the will of Ambrosius Neidhart 1472, another copy in Stadtarchiv Ulm, E Neithardt Akten Nr. 57 Nr. 2. 55 Stadtarchiv Ulm, G 2 von Stribel, Leonhard, 1494; Stadtarchiv Ulm, G 2 Stammler, Johann,1495; Stadtarchiv Ulm, A1056, testament of Magdalena Weickmann, widow of Conrad Gerst, 1495; Stadtarchiv Ulm, G 2 Braunwart, Agnes Nr. 1, 1495; Stadtarchiv Ulm, G 2 Schweyker (Schweigger), 1: testament of Anna Schweykerin 1495; Stadtarchiv Ulm, G 2 Märcklin (Mercklin), I: Ulrich, 1495; Stadtarchiv Ulm A 4615 Nr. 7: draft of the testaments of Ursula Krafft, 1497; Stadtarchiv Ulm, A 3691, Nr. 2: draft of the testaments of Mathis Ehinger, 1498; Stadtarchiv Ulm A 4615 Nr. 2: draft of Peter Krafft, undated, ebd. Nr. 9: draft of his will of 1502. 56 Stadtarchiv Ulm, A 3691, Nr. 2: draft of the will of Mathis Ehinger, 1498. 57 Stadtarchiv Ulm, G 2 Braunwart, Agnes Nr. 1, 1495; Stadtarchiv Ulm, G 2 Schweyker (Schweigger), 1: testament of Anna Schweykerin, both by one hand. A second hand wrote 31
late medieval wills in southwest german imperial towns 32 © PHOTO: MARK MERSIOWSKY
mark mersiowsky 33 Figure 3: Will of the city of Ulm, subjective form of the testator, sealed by the testator as well as by the two judges, each with their private seal, Stadtarchiv Ulm, A Urk. 236.
late medieval wills in southwest german imperial towns suggests that they are not the drafts by the testator, but were probably made in the town registry for the execution of the deed by scribes there. In the medieval world, symbolic actions played a very important role alongside writing. In individual cases, we learn from the texts about legal acts that preceded the documentary form or accompanied it. The Reutlingen citizen Margreth Gyrin appeared before the judges of the city of Reutlingen on 23 June 1494, had her will for the establishment of a foundation read out before the judges of the city, and then, according to the document, shook hands with the mayor Caspar Huber; the so-called Präsenzmeister (responsible for the attendance fee of the clergy) Jerg Schütz and Jerg Büglin; the master of the merchants’ guild Jerg Kaiser; and the judges of the same guild Hans Hürter, called Sailer the Younger, and Ludwig Weißgerwer. Thereupon the judges declared the will to be legally valid, two copies of which have been preserved.58 The will of Johannes Stunder in 1498 also mentions this handshake as a Reutlingen custom.59 The Ulm will of the priest Dr. Heinrich Neidhardt determined the mechanisms of the publication of the will. After his death, the ecclesiastical court at Constance was to inform his brother Ludwig Neithardt, Ammann zu Konstanz; his sister Barbara Neithardt; Dr. Gregor, Dr. Matthäus, and Heinrich and Hieronymus Neithardt, sons of his deceased brother Erasmus Neithardt; and all potential legal successors. In addition, the will was to be read publicly from the pulpit in Ulm.60 Stadtarchiv Ulm, A 1056, testament of Magdalena Weickmann, widow of Conrad Gerst, 1495; Stadtarchiv Ulm, G 2Märcklin (Mercklin), I: Ulrich, 1495; Stadtarchiv Ulm, A 3691, Nr. 2. 58 Deigendesch et al., eds (2023) Nr. 668 p. 510; StadtARt A2U818 andA3U151, two examples of the testament. 59 Deigendesch et al., eds (2023) Nr. 738 p. 560f. 60 Stadtarchiv Ulm E Neithardt Urkunden Nr. 71, Digitalization and regest at https://www. stadtarchiv-ulm.findbuch.net/php/main.php45204e65697468617264742055726b756e64 656ex71. 34
mark mersiowsky Wills always reflect a specific situation that might change. Thus, wills were modified again and again and replaced by newer documents, as is often evident from the texts.61 There were not only wills, but also partial wills. For example, in July 1439, the married couple Hans Schappell and Anna Rebhärin, both citizens of Esslingen, bequeathed 100 pounds Heller and a bedstead with accessories as a one-time inheritance to Anna’s daughters from her previous marriage, i.e. a kind of settlement.62 Such partial wills can also have the legal form of a separate foundation.63 In addition to the will in the true sense, i.e. the disposition of all property in the event of death, there are documents with a similar function. In Reutlingen, for example, instead of a will, the form of a donation with a reservation of possible uses64 or a donation in the event of death65 was used. An example of individual donations in the event of death is the donation of 100 Rhenish florins to Ulm Minster in 1474 by Konrad Kraft, who wished to be buried at the altar of the Kraft family in the parish church. Incidentally, these chirographs, in GermanKerbzettel, were issued in three copies: his two living sons and the widow of his deceased son each received a copy.66 Sudden illness or quick death could prevent the issuing of a legally valid will. Then a substitute for the will was needed. In 1484, the will of Adelheid of Frankfurt was witnessed by her confessor and the parish priest of Ulm Cathedral. Adelheid was said to be ill, but in full possession of her mental powers, and at her last confession, in the presence of two other women, she had made the testified dispositions.67 Alternatively, re61 Cf. Stadtarchiv Ulm A Urk. 1461, Digitalization and regest at https://www.stadtarchivulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex2977; Stadtarchiv Ulm, A Urk. 1728, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/ main.php?ar_id=3766#412055726b2ex3251. 62 Stadtarchiv Esslingen, PU11. 63 So for the foundation of the perpetual mass by Ludwig Kraft 1412, Stadtarchiv Ulm, A 4615, Nr. 4 in Latin and German. 64 Kreutz, ed. (2019) Nr. 84 pp. 52f. (1309). 65 Kreutz, ed. (2019) Nr. 83 p. 51 (1309), Nr. 123 (1319) pp. 79f., not recognizable in the regest, but in the text: gemachet nach minem töde ... 66 Stadtarchiv Ulm, A 4615, Nr. 6. 67 Stadtarchiv Ulm, A Urk. Nr. 2550, Digitalization and regest at https://www.stadtarchivulm.findbuch.net/php/main.php#412055726b2ex4081. 35
late medieval wills in southwest german imperial towns latives or heirs could make the corresponding declarations. Thus, in 1433, the heirs of Johann Martin state that the testator died before he could have a certified and sealed will drawn up, but they would carry out his dispositions.68 A particularly interesting substitute will – dated September 1508 – was issued by a German brotherhood in Venice. It informed Nicolaus Munck of “Grieningen” of the death of his son Hans, who had died in the hospital of the brotherhood in Venice. The masters wrote down the last will and testament of the dying man and sent it to his father in the form of a deed in German, on paper with an imprinted wafer seal.69 So far we have considered actual wills. As was common in late medieval judicial and administrative practice, wills were not isolated units, but always part of a larger context of documents with various functions. Therefore, we can speak of will-accompanying written documents. Basically, we can distinguish two categories here: documents accompanying the will before succession and those after succession. Before succession, various types of written documents were used. Clergymen were not allowed to make wills without special permission because of the sometimes competing provisions of canon law; they were required to obtain episcopal permission to do so.70 In addition to testamentary dispositions, the legal framework with its implementation were also prepared in the form of a deed while the testator was still alive. Guardians and executors were appointed and their succession regulated,71 and guardianships over children were arranged.72 68 Stadtarchiv Ulm, AUrk. Nr.1481, Digitalisat unter https://www.stadtarchiv-ulm.findbuch. net/ php/main.php?ar_id=3766#412055726b2ex2997 69 Stadtarchiv Esslingen, Inventuren und Teilungen 343. An orientation on German testaments in Venice provided by Hollberg 2005; on wills of German craftsmen in Venice, Hollberg2007. 70 Stadtarchiv Ulm A Urk. 2572, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php#412055726b2ex4102; Deigendesch et al., eds (2023) Nr. 738, pp. 560f. 71 Stadtarchiv Esslingen, PU24. On executors, Schulz 1976, pp. 27–35; a juridical study in Offergeld 1995, pp. 25–40. 72 Stadtarchiv Ulm, A Urk. Veesenmeyer Nr. 59. 36
mark mersiowsky The inheritance rights of children from previous marriages were clarified73 and legally exact inheritance agreements or divisions were made.74 Wills were sometimes revised and amended to adapt to changing circumstances, such as the pledging or sale of property or interest.75 Sometimes the parties involved determined in the will the resolution of possibly contentious issues in advance.76 When the testator died, the will came into effect and the heirs had to meet the obligations arising from the inheritance. Depending on the testamentary dispositions, a whole number of different legal acts became necessary, each of which required or produced its own documents accompanying the will. Here, we now have the second category of documents accompanying wills, those after the inheritance. Testamentary provisions had to be legally implemented in the necessary forms. For example, on 18 November 1355, Elisabeth Rot, a citizen and widow of Ulm, had three deeds issued in order to implement the testamentary dispositions of her deceased husband.77 Some wills dragged on for a long time, such as Leibzuchtenor disbursements of funds for education. Problems with the implementation of the wills or other legal problems led time and again to lawsuits before the municipal court about 73 Stadtarchiv EsslingenPU16. 74 Stadtarchiv Ulm, E Neithardt Akten Nr. 84. Another draft from the same collection outlines an inheritance contract among the brothers Dr. Matthäus, Dr. Heinrich, and Hieronymus Neithardt, all citizens of Ulm, unfortunately undated; Stadtarchiv Ulm, E Neithardt Akten Nr. 148. 75 Stadtarchiv Ulm, A Urk. 2502, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766” \l ”412055726b2ex4033; Stadtarchiv Ulm, A Urk. 2497, Digitalization and regest at ”https://www.stadtarchiv-ulm.findbuch.net/ php/ main.php?ar_id=3766” \l ”412055726b2ex4028”. Similar problems are solved by Stadtarchiv Ulm, A Urk. 2687, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php#412055726b2ex4210 (1491). 76 Stadtarchiv Ulm, A Urk. 1671, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex3192; Stadtarchiv Ulm, A Urk. 1798, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main. php?ar_id=3766#412055726b2ex3326. 77 Stadtarchiv Ulm, A Urk. 236, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex351; Stadtarchiv Ulm, A Urk. 237, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main. php#412055726b2ex352; Stadtarchiv Ulm, A Urk. 238, Digitalization and regest https:// www.stadtarchiv-ulm.findbuch.net/php/main.php#412055726b2ex353. 37
late medieval wills in southwest german imperial towns 38 © PHOTO: STADTARCHIV ULM Figure 4: Draft of the testaments of Mathis Ehinger, 1498, with several hands, Stadtarchiv Ulm A 3691, Nr. 2.
mark mersiowsky 39
late medieval wills in southwest german imperial towns inheritance issues, whether in Esslingen,78 Reutlingen,79 orUlm.80 Many difficulties resulted from a succession, for there were definitely different pretenders to the inheritance. In 1446, for example, the Esslingen city court had to clarify who was entitled to the inheritance of the deceased chaplain Rüdiger Ruprecht. They had to determine who were and how they were related to the deceased, and who was the rightful heiress. However, this presumptive heiress had to wait a year for the transfer of the property in case someone with a closer relationship came forward after all.81 In the case of annual foundations and other ecclesiastical foundations, the competent diocesan bishop would be asked for his confirmation. This could occur before as well as after the inheritance. Many of these requests, which in each case refer to a will and specify the exact regulations of the foundation or endowment, are drawn up as Latin or vernacular notarial instruments,82 but there are also seal certificates with the seals of the executors of the will83 and, in addition to these, with the town seal ofUlm.84 For the confirmation of the Bishop of Constance, one resorted to a transfix, i.e. the attachment of the approval document to the petition, by pulling the parchment strip, to which the seal of the bishop or vicar 78 Stadtarchiv Esslingen, PU6 (1428), PU9 (1431), PU18 (1453). 79 Deigendesch et al., eds (2023) Nr. 89 p. 56. 80 Stadtarchiv Ulm, A 5475, a lawsuit by Anna Gyger, widow of Heinrich Gyger, against her brother-in-law Hans Gienger concerning the inheritance of the old Gyger, with a detailed description of the dispute, 1465 (Abschrift des besiegelten Urteilbriefes). 81 Stadtarchiv Esslingen, PU15. 82 According to the confirmation, a petition today lost was a notarial instrument: Stadtarchiv Ulm AUrk. 1015, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch. net/php/main.php?ar_id=3766#412055726b2ex1193: quidam cirographus wulgaris in formam publicam redactus. 83 Stadtarchiv Ulm, A Urk. 2170, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex3700.; Stadtarchiv Ulm, A Urk. 2680, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main. php#412055726b2ex4203. 84 Stadtarchiv Ulm A Urk. 1634, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex3161 (1443); Stadtarchiv Ulm A Urk. 2288, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch. net/php/ main.php?ar_id=3766#412055726b2ex3818 (1471); Stadtarchiv Ulm, A Urk. Nr. 2695, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php# 412055726b2ex4218 (1492). 40
mark mersiowsky general was to be attached, through a cut in the plica of the petition before sealing. Then it would no longer be possible to separate the authorization from the petition without damaging the seal, the strip, or the plica.85 This brings us to a conclusion. In this article it was only possible to work with samples; the entirety of the rich material will require further study. The world of late medieval wills is vibrant; their forms were determined by local as well as individual circumstances. The usual Central European document forms were used: a sealed deed, notarial instruments, a chirograph, and hybrid forms, on parchment or paper. The wills were part of a larger context of documents with different functions, which we 85 Stadtarchiv Ulm A Urk. 1015, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex1193. Other confirmations isolated today without a request letter preserved in Stadtarchiv Ulm, A Urk. 2063, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php?ar_id= 3766#412055726b2ex3592; Stadtarchiv Ulm, A Urk. 2339, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php?ar_id=3766#412055726b2ex 3870. Stadtarchiv Ulm E Besserer Urk. 338, 339. Other transfixes Stadtarchiv Ulm A Urk. 1634, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main. php?ar_id=3766#412055726b2ex3161 (1443) with Stadtarchiv Ulm A Urk. 1635, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php?ar_id= 3766#412055726b2ex3162 (1443). Today separate, but originally transfixes Stadtarchiv Ulm, A Urk. 1962, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch. net/php/main.php?ar_id=3766#412055726b2ex3491 (1458) with Stadtarchiv Ulm, A Urk. 1965, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main. php?ar_id=3766#412055726b2ex3494 (1458); Stadtarchiv Ulm, A Urk. 2170, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php?ar_id =3766 #412055726b2ex3700 with Stadtarchiv Ulm, A Urk. 2172, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php?ar_id=3766#412055726 b2ex3553; Stadtarchiv Ulm A Urk. 2288, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php?ar_id=3766#412055726b2ex3818 (1471) with Stadtarchiv Ulm A Urk. 2290, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php?ar_id=3766#412055726b2ex3820; Stadtarchiv Ulm, A Urk. 2680, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main. php#412055726b2ex4203 with Stadtarchiv Ulm, AUrk. 2684, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php#412055726b2ex4207 (1491); Stadtarchiv Ulm, A Urk. Nr. 2695, Digitalization and regest at https://www.stadtarchivulm.findbuch.net/php/main.php#412055726b2ex4218 with Stadtarchiv Ulm, A Urk. 26 96, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main. php#412055726b2ex4219; Stadtarchiv Ulm A Urk. 2729, Digitalization and regest at https://www.stadtarchiv-ulm.findbuch.net/php/main.php#412055726b2ex4261with Stadtarchiv Ulm A Urk. 2732, Digitalization and regest at https://www.stadtarchiv-ulm. findbuch.net/php/main.php#412055726b2ex4264. 41
late medieval wills in southwest german imperial towns can observe as written documents accompanying the wills. It was certinly not yet time for auniform administrative act,but depending on the situation and purpose, the medieval document system was flexible. It could be put to the test, particularly when complex problems among different legal systems were to be settled. Here, it was only possible to touch upon the different types of written documents that accompanied wills. 42
mark mersiowsky•bibliography 43 Stadtarchiv Esslingen 23 III 11. Inventuren und Teilungen 343. KHU930. PU 6, 9, 11, 15, 16, 18, 24. Stadtarchiv Reutlingen A 1 Nr. 14246. A 2 Nr. 1088. A 2 U 818, 820. A3Nr. 359. A3U151. Stadtarchiv Reutlingen A 1056, 1311, 3691, Nr. 2, A 4615 Nr. 2, 3, 4, 6, 7, 9, A 5475. A Urk. 236, 237, 238, 404, 1015, 1461, 1481, 1524, 1634, 1635, 1671, 1728, 1734, 1798, 1962, 1965, 2063, 2170, 2172, 2188, 2241, 2288, 2290, 2339, 2497, 2491, 2502, 2550, 2572, 2611, 2680, 2684, 2687, 2695, 2696, 2729, 2732, 2752. A Urk. Veesenmeyer Nr. 59, 78, 360, 399. Ulm E Besserer Urk. 338, 339. E Neithardt Akten Nr. 57 Nr. 2, Akten Nr. 84, 148, 211. E Neithardt Urkunden Nr. 71. G 2 Braunwart, Agnes Nr. 1 G 2 Märcklin (Mercklin), I G 2 Schweyker (Schweigger), 1 G 2 Stammler, Johann 1495 G 2 von Stribel, Leonhard, 1494 Manuscripts and Charters
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