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siness of that to declare what the mind of the law is, its answer will be of sufficient authority to release the witness; but only in cases where he believes that such release is not at variance with the intention of the person imposing the oath.

CHAP. XVIII.-WILLS.

The question is, Are wills a natural or adventitious right? or, in other words, Is the right to devise property founded on the law of nature, or on the law of the land?

As a man's labor is his own property, so is the produce of his labor; such as the utensils which he manufactures, the tent or hut that he builds, and the flocks or herds that he rears. And, as he may give such property away when alive, he may leave them at his death to whom he pleases; because there is nothing to limit the continuance of the right, or to restrain the alienation of it.

But property in land stands upon a different foundation. For the right to a spot of ground arises, in a state of nature, from the right to apply a part of what is common to all, to an individual's own wants and use; and as the wants and use cease at death, so does the right cease also. Consequently in such state, the family of the first occupier have, in the right of possession, a preference not by inheritance; but by becoming the first occupiers after him, and by succeeding to the same want and use.

Again, as natural rights cannot, like rights created by law, expire at the end of a certain number of years; if the testator had a natural right to dispose of landed property for one moment after his death, he might direct the disposition of it for ever; which would be absurd.

The right, then, to will landed property is adventitious, or founded on the law of the land. And this inference is confirmed by the fact, that in most countries the power to make wills has been given only by the laws of the state; as by the laws of Solon at Athens, and at Rome by the twelve

234 Is it so in all cases?

235 What is the question relative to wills?

236 What kind of property may a man leave to whom he pleases? 237 Does all property stand upon the same footing by the law of nature? Why is this the case?

238 What absurdity would follow from the natural right of willing landed property?

239 On what then is that right founded? How is that proved?

tables. And even in England, the prohibition against the divisal of land existed from the Conquest till near the close of the reign of Henry VIII., when the privilege was restored by law.

No doubt, many beneficial purposes are attained by extending the owner's power over his property beyond his life and beyond his natural right. It invites to industry, it encourages marriage, and it secures the dutifulness and dependency of children.

As wills are the creatures of the law, so they have no power except from the law. Hence, if the will be informal, it is the same as if it had never been made. By an informal will, I mean a will that lacks some formality that is required by the law, though no doubt is entertained of its meaning and authenticity.

For instance, if a man devise his freehold estate to his sister's son, and if the will be not attested by witnesses, and the law requires that attestation; then the heir-at-law is legally authorized to seize the estate, although aware of the testator's intention to cut him off; and the sister's son is morally bound to give up the estate, as soon as he finds this flaw in the will. For the intention of the testator can signify nothing unless he have a right to govern the descent of his estate. Now, as the right to convey is clogged with certain conditions, it is evident that if such conditions be not fulfilled, the right is virtually given up; and the heir-at-law is placed only in the situation, where he would be if there had no will been made. For, the intended will is so much waste paper, from the defect of right in the person who made it. And as the retention of the estate by the sister's son would be contrary to law if the flaw were known to the legal heir, so it is against morality not to give it up, although the flaw be known only to the illegal possessor. Had wills been founded on natural rights, the decision in this case would have been just the reverse; for, then the requirements of

240 What are the advantages of wills?

241 What is meant by saying a will is informal?

242 Of what effect is such a will? Why?

243 Give an example.

244 Why must not the intention of the testator be followed?

245 How is this right lost?

246 What is the consequence of such loss?

247 What rule of morality will this lead to?

248 Would this be the case if the devising of land was a natural

right? Why?

the law would seem rather to refuse its assistance to enforce the right of the devisee, than to deny or work any alteration in the right itself; and consequently, I should consider them unjust.

["The transmission of property by hereditary descent, from the parent to his children, is the dictate of the natural affections; and Doctor Taylor holds it to be the general direction of Providence. And nature and policy have generally concurred to introduce and maintain this primary rule of inheritance, in the laws and usages of all civilized nations. But the distribution among the children has varied greatly in different countries; and no two nations seem to have agreed in the same precise course of hereditary descent; and they have very rarely concurred, as we have done, in establishing the natural equality that seems to belong to lineal descendants standing in equal degree."-Kent's Commentaries, vol. 4, page 376.]

In the disposal of property, the regard due to kindred not lineal, arises either from the presumed intention of the ancestor from whom we received our fortune, or from the expectations we have encouraged. The intention of the ancestor is presumed with greater certainty, in proportion to the nearness of the relation. For instance, it may be presumed to be a father's intention, that the inheritance which he leaves for one son, should, if that son dies childless, remain a provision for the families of his other children. Whoever, therefore, gives to strangers what he has received from kindred, is guilty, not so much of unkindness to the parties not receiving, as of ingratitude to the party from whom the property came. Where a man has acquired property by his own exertions, and at the same time has refrained from exciting the expectations of relations, he is perfectly at liberty to dispose of his property, uninfluenced by consanguinity and affinity; for these are merely forms of speech, imposing no moral obligation to do any particular act. 249 What is said of hereditary descent?

250 By what has this primary rule been sustained?

251 Has this distribution always been equal?

252 Is it the case in this country?

253 By what is occasioned the descent of property to those who are not lineal descendants? Give an example.

254 What follows from this view of the subject?

255 What right has a man in devising property which he has acquired himself?

There is, however, one particular reason for providing for poor relations, which is, if we do not, no one else will.

["In this country we have much statute regulation on the subject. There is no doubt that the testator may, if he pleases, devise all his estate to strangers, and disinherit his children. This is the English law, and the law in all the states, with the exception of Louisiana. Children are deemed to have sufficient security in the natural affection of parents, that this unlimited power of disposition will not be abused. If, however, the testator has not given the estate to a competent devisee, the heir takes, notwithstanding the testator may have clearly declared his intention to disinherit him. The estate must descend to the heirs, if it be not legally vested elsewhere.”—Kent's Commentaries, vol. 4. page 525.]

To neglect to make a will is a culpable omission, when it occasions an equal distribution of what ought to be distributed unequally on account of the situations of the parties, or where it leaves an opening for litigation.

As the right of succession is founded on law alone, so the claims of succession in cases where there is no will, must be regulated by law alone.

These regulations ought to be guided by the duty and presumed inclinations of the deceased. The law of descent, which is founded on the English statute of distributions, is sufficiently equitable. It assigns one-third to the widow, and two-thirds to the children; in case of no children, one-half to the widow, and the other half to the next of kin where neither widow nor lineal descendants survive, the whole to the next of kin, and to be equally divided amongst kindred of equal degree, without distinction of whole blood, and halfblood, or of consanguinity by the father's or mother's side.

:

["In a majority of the states, the descent of real and of personal property is to the same persons, and in the same proportions. Such a uniform rule in the descent of both real and personal property, gives simplicity and symmetry to the whole doctrine of descent. The English statute of distributions,

256 Has a man a right to disinherit his children? 257 When is it wrong to neglect making a will? 258 How is succession regulated if there is no will? 259 On what principle should the law be formed? 260 What is the English statute of distributions?

being founded in justice, and on the wisdom of ages, and fully and profoundly illustrated by a series of judicial decisions, was well selected, as the most suitable and judicious basis on which to establish our American law of descent and distribution."-Kent's Commentaries, vol. 2. page 427.

261 What is Kent's remark concerning that statute? 262 What was occasioned by these good qualities?

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