Summary

From the end of the 16th century up to 1944, the orphan courts were in charge of guardianship and trusteeship on Estonian and Latvian territories. These courts (Est: vaeslastekohus; Germ: Waisengericht; Rus: ----) acted as institutions of public supervision.
Orphan courts were formed due to the need to protect the property rights of widows and orphans, also to arrange the growing numbers of guardianship and trusteeship cases. The preconditions for this involved the growth of wealth of the local population, and the relative independence of the cities and the nobility to regulate legal relations. The first orphan courts both on Estonian and Livonian territories were formed for the town citizens in the 17th century, then for the nobility in the 17th-18th centuries, and finally for the peasantry in the 19th century. During the course of the research, several original dates of the orphan courts' activity were specified. For example, an Estonian provincial orphan court, dated to 1724 by F. G. von Bunge and other researchers, started to function already in 1715.

Initially, development of a special system was not planned; network was created to meet relevant needs. The establishment of such courts should be considered an exception. Usually, in the legal space Western Europe the above described cases belonged to the jurisdiction of the civil courts of the first degree. Here also lies an answer to the question why the functioning of orphan courts was associated with the fulfilment of the tasks of several other courts before the judicial reform in 1889.

The first attempt to unify the jurisdiction of the orphan courts was made at the time of the administrative reform in 1783-1797 when offices of the nobility's trusteeship were set up in every county. Orphan courts, independent of the magistrates, were established in every town. The idea to establish separate trusteeship institutions originated from Catherine the Great probably on the example of Estonia and Livonia. Unfortunately, the system was short-lived; after the empress's death these reforms were annulled and the old system was re-established. Since in Russia courts for the nobility and town orphan courts, managed in this way and having no court functions, continued to exist, then the re-introduction of the same system together with the reforms of 1889, can be considered positive despite 100 years of lingering. At that time, also the adjustment of their functions was carried out in Estonia and Livonia.

The cases of peasants' trustee- and guardianship were handled by the peasant courts of the first degree starting from their foundation at the beginning of the 19th century. The judicial reform of 1889 set similar standards for the parish courts of all three Baltic provinces. It was considered purposeful that the cases of peasants' trustee- and guardianship were handled by parish courts as the institutions that were the most closest to parish inhabitants and able to understand local conditions.

The next conventional period in the history of orphan courts is 1918-1944. In 1920 orphan courts for the nobility ceased to exist. In 1918 also the parish courts were liquidated and the cases in their jurisdiction were handed over to new courts. Since the transference of the cases of trustee- and guardianship to some other institution was not arranged, parish courts were temporarily set to function as orphan courts. This temporary condition lasted, notwithstanding constant discussions and reform designs, till 1944. As a peculiar interlude, there existed special trustee courts in 1920-1926, which were supposed to handle the supervision of the cases of trustee- and guardianship of greater importance. It was confirmed again that the arrangement of such matters requires the solution of territorial issues. The cases of trustee- and guardianship were distributed unevenly; the institutions of supervision, on the other hand, had to be situated close to trustees and guardians.
Upon the establishment of Soviet power, the orphan courts of towns, settlements and parishes were abolished. The cases in their responsibility were taken over by administrative institutions - the executive committees. During the German occupation (1941-1944) orphan courts were restored and they functioned until final liquidation in 1944.

In their activity, orphan courts were based on various legal acts, most important of them being the trusteeship regulation of Riga (1591), Livonian instruction for noble orphans (1647), the Swedish trusteeship regulation (1669), the orphan court and trusteeship regulation of Tallinn (1694) and the Estonian provincial orphan court and trusteeship regulation (1724). Relying on these and other existing traditions, relevant provisions were drawn up for the codifications of the local private law in 1845. The private law of the peasantry was documented in the laws of peasantry, whereby the Baltic Private Law was to be used as a subsidiary law. After the abolishment of the estates in 1920, the latter should have been used as a sole code of the private law. Yet only after the explanation by the Supreme Court's General Meeting in 1927 was the use of peasant laws discontinued as a source of the private law.

After the old court institutions were abolished in 1889, the first part of the Baltic Private Law, regulating partly the activity of the institutions involved in trusteeship cases, became largely invalid. Hereafter the orphan courts for the nobility and towns, as well as Russian general provincial and parish courts followed the so-called parish court law of 1889. The main functions of the local orphan courts were the following:
o nomination, confirmation, and removal of guardians and trustees;
o compilation of an inventory of the inherited property of minors;
o counselling widow trustees;
o checking of the correctness of the annual and final reports of guardians and trustees;
o division of the legacy in case legal heirs included persons under guardianship;
o checking of the transactions with the real estate of minors, made by their trustees; imposing of obligations on the real estate of persons under trusteeship and divestment of the real estate;
o acceptance of or expressing of an opinion on adoption of minors;
o acceptance of liberation from parental authority; equalization of children from different marriages;
o giving permission to widows for marriage after provision of a share of the property for children from the previous marriage;
o settling of disputes between persons under guardianship and trusteeship and their guardians and trustees;
o setting of rewards for guardians and trustees.

According to the archival traditions that had developed by the mid 19th century, all documents of the process of proceedings were preserved. The first concentration of the materials of orphan courts in central archives took place in 1889 during the reorganisation of courts. The documents of the liquidated court institutions were gathered into the district court archives of Riga and Tallinn. The first planned destruction of documents was carried out during this undertaking. Since the process of the destruction is not well documented, one can not specify the share of the materials of orphan courts in it. After the abolishment of orphan courts, acquisition of their materials by state archives started. Using of the registration documents, especially the stock dossiers of the Soviet era for this study revealed that the movement of materials among orphan courts and parish courts (1918-1944) had a certain stage wise pattern: from the owner of materials to a regional archives, and from the regional archives to the central archives. After the specification of the profile of the central archives, the materials originating from the period after 1917 were concentrated in ORKA (Central Archive by the name of the October Revolution). The methods used to create stocks out of documents can be clearly distinguished:
o creation of the stock out of documents handed over to the archive;
o out of records separated from a former stock;
o out of archival documents found in the depository (which means that the way of the documents to the state archive could not be specified).

While documents were arranged into stocks, a part of them were separated and destroyed. According to the Soviet assessment criteria they were of no practical, political or scientific value. Tables with the lists of disposable items show that one-fifth of the orphan courts' documents, handed over to the state archives, had been destroyed. The larger was the bulk of the material in the group of similar archive constituents, the more of it was destroyed. The documents of town courts suffered most (25% disposed), followed by parish courts (6%), guardianship courts (4%) and courts for noble orphans (3%). Despite the largest absolute number and the percentage of destroyed documents, the archives of town orphan courts are generally more complete than those of other institution groups. This can be explained by the fact that since in town orphan courts there were more documents of similar type, it was considered necessary to preserve only specimen copies, while the rest were destroyed as lacking a practical value. To keep in view the stock composition of individual archives, it is evident that larger ones suffered most, for in smaller archives, in one way or other, the material was fragmentary. The record series sustaining the greatest losses were the guardianship and trusteeship dossiers (8472 records or 40%) as well as the dossiers of nomination of guardianship and those related to granting permission for second marriages (6824 records or ca 32%).

Destruction of the documents of orphan courts after World War II was not drastic and has not diminished the representative value of the preserved archives. Currently, 321 stocks of orphan courts with 85 000 records are available to researchers.

The material of orphan courts as a source offers various possibilities of use. It became evident that the minute-book and the journal do not represent different type of documents in orphan courts; data in them are overlapping. Both enable to study the administrative activity of an institution and the fulfilment of its tasks. The value of bookkeeping records in orphan courts is difficult to overestimate, since the courts for nobility and the town orphan courts were in charge of large sums of money over a long time. Therefore, majority of bookkeeping documents do not reflect the state of an institution but the state of the assets of the wards. Primary bookkeeping documents consisted of cash books and ledgers. The first allow to follow the movement of finances in a chronological order; the latter give an overview of the assets of trustees and wards. Bookkeeping documents as a source are useful when one wishes to research purely economic aspects or to perform statistical analysis. They include, in a concentrated form, all economic indicators associated with the guardianship of assets. Numerous preserved register books were of practical value primarily in the management of an institution and they have been less widely used source of research. If minute-books and journals are missing, the register book can give an overview of the institution's management. At the same time, the register of current business is one the best sources for studying the number and duration of trustee- and guardianship cases. Archival registers can be successfully used for comparison of the generated and preserved materials to find out the completeness of stocks.

Trustee- and guardianship records of orphan courts are the most characteristic series that attract researchers. These materials constitute a perspective source for social sciences. Their greatest value is keeping record of the long-time activity of different social strata. The records contain large numbers of trustees' and guardians' reports and property lists. The worldwide attention attracted by the latter group of material gives evidence of its extensive use. The reports of wards' trustees and property guardians are surveys compiled by those persons themselves. They present details of issues related to the upbringing and education of children. As it was usually the duty of widowed mothers, these materials enable also to study the position of women (and widows) in different times.

The materials of orphan courts as a whole help to understand the regulation and development of social functions. The legal protection of incapable persons was in a social focus already in the Roman Empire. To manage the issue, a unique institution - orphan court - was established on Estonian and Latvian territories. The source of the study of its practical activity is represented by its own materials. From the position of legal history, it is important to follow changes in the law on trustee- and guardianship and, which is even more important, to study the relations between the established norms and their implementation and interpretation.

Since it was not the purpose to display the entire spectrum that can be studied through the use of the documents of orphan courts, it is hoped that the present issue will provide primary guidelines and clues for the further use of these sources and that the latter will be widely used for the benefit of our historiography.