Inheritance and Adoption in Chinese Families
"The nexus of the family organism is the parents, or one of them. New families arise when the old one is broken up, and this happens only when both parents…
From: 1915 C.E. To: 1915 C.E.
Note: This article has been excerpted from a larger work in the public domain and shared here due to its historical value. It may contain outdated ideas and language that do not reflect TOTA’s opinions and beliefs.
“The Internal Working of the Village,” part two, from Village and Town Life in China by Y.K. Liang and Li Kung Tao, 1915.
The nexus of the family organism is the parents, or one of them. New families arise when the old one is broken up, and this happens only when both parents are dead. As long as either the father or mother is living the family still exists, and no new families are recognized irrespective of the age of the children.
It very often happens that even after the death of both parents the old family still continues to exist for a considerable time under the guardianship of the eldest brother. Such a case happens when either some of the brothers are too young or some of the sisters are still unmarried. The brother then who steps into the shoes of the father of the family has heavy responsibilities. The rights and duties of the father of the family now rest on him. Thus it is his duty to get his brothers and sisters properly married and settled, and in the case of the sisters a suitable dowry, according to the means of the family, must be provided for each.
The family property, both real and personal, is vested in the father. After his death, if the family continues to exist, it vests in the eldest son, who steps into the rights and duties of the father. If there is a division of the family the property is divided equally amongst the sons. The law of primogeniture is unknown except that if the eldest son should have male issue before the other sons during the lifetime of one or both of the parents, and if this grandson is living at the time of division, he is entitled to a double share. Should any of the sons be deceased at the time of division the deceased is represented by his male issue for the purpose of division. The sons taking directly take per caput, i.e., the property is divided among them by the head; while those who take by representation take per stirpem, i.e., the parent's share is divided among the male issue who represent him.
Thus if A, the father of a family, dies leaving B and C, two sons, surviving, and E and F, the male issue of D, a deceased son: B and C will take one-third each, E and F each will have half of D's one-third—i.e., one-sixth each by representation. The daughters being married before the family is broken up and now belonging to other families, are entitled to no share beyond the dowries they get at the time of their marriage.
Should the father of the family have no male issue, and this is considered most unfortunate, the gap must be filled up by adoption. The principle of adoption varies according to the customs of each clan. Thus in the same village the different clans (if there are more than one) may adopt different rules. Thus some do not permit adoption from outside the clan. Others again, as a rule small and poor, permit this on condition of a substantial gift made to the ancestral hall.
This is only reasonable, for if a person outside the clan is adopted he and his descendants are thereby entitled to all the privileges, often pecuniary, given to the members of the clan. Within the limits of the clan custom the father of the family is free to adopt whom he likes irrespective of the remoteness in relationship of the person adopted. In fact, a total stranger may be adopted if the clan customs so permit.
But should he die without making any provision of adoption then a fictitious adoption is made. The nearest male relative who is one generation younger than the deceased and of the same clan comes forward and performs publicly all the duties as continuator of the ancestral line of the deceased. This may give rise to very complicated disputes, especially where there is a substantial inheritance. But such disputes are settled by all the elders of the clan forming the clan tribunal.
The rules of adoption incidentally throw light upon the autonomous character of the Chinese village. They reveal the fact that in spite of express laws enacted by Imperial Edicts village and clan customs prevail. It is provided by the Imperial Law that “a man having no male issue shall choose the continuator of his line among those who are of the same clan, beginning with his father's issue, next with his relatives in the first degree, next with those in the third degree, and lastly with those in the fourth degree; upon the failure of these he is at liberty to choose whomsoever he may prefer among those of the same clan. Whoever appoints the continuator of his line unlawfully shall be punished with 80 blows."
Further, it is provided that "whoever adopts a person outside the clan is guilty of confounding family distinctions and shall therefore be punished with 60 blows." (Ta Tsing Leu Li, Sec. 78.) It need hardly be added that such enactments are not, as far as the village is concerned, the rules of adoption, and that they are impotent and remain a dead letter before the iron rigour of the village and clan customs.
Liang, Y. K., and Li Kung Tao. Village and Town Life in China. MacMillan Co., 1915.
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