CHAP. WILLS. XXIII. HE fundamental queftion upon this fubject is, whether THE Wills are of natural or of adventitious right? that is, whether the right of directing the difpofition of property after his death belongs to a man in a state of nature, and by the law of nature, or whether it be given him entirely by the pofitive regulations of the country he lives in? The immediate produce of each man's perfonal labour, as the tools, weapons, and utenfils, which he manufactures, the tent or hut he builds, and perhaps the flocks and herds which he breeds and rears, are as much his own as the labour was which he employed upon them, that is, are his property naturally and abfolutely; and confequently he may give or leave them to whom he pleases, there being nothing to limit the continuance of his right, or to restrain the alienation of it. But every other fpecies of property, efpecially property in land, ftands upon a different foundation. We have seen in the Chapter upon Property, that, in a state of nature, a man's right to a particular spot of ground arifes from his ufing it, and wanting it; confequently ceafes with the ufe and want; fo that at his death the estate reverts to the community, without any regard to the last owner's will, or even any preference of his family, farther than as they become the firft occupiers after him, and fucceed to the fame want and use. Moreover, as natural right cannot, like rights created by act of parliament, expire at the end of a certain number of years; if the teftator have a right by the law of nature, to difpofe of his property one moment after his death, he has the the fame right to direct the difpofition of it, for a million of ages after him; which is abfurd. The ancient apprehenfions of mankind upon the fubject were conformable to this account of it: for wills have been introduced into moft countries by a pofitive act of the state, as by the laws of Salon into Greece, by the twelve tables into Rome; and that, not till after a confiderable progrefs had been made in legiflation, and in the economy of civil life. Tacitus relates, that amongst the Germans they were difallowed; and, what is more remarkable, in this country, fince the conqueft, lands could not be devifed by will, till within little more than two hundred years ago, when this privilege was restored to the subject, by an act of parliament in the latter end of the reign of HENRY the Eighth. 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; it fecures the dutifulness and dependency of children. But a limit must be affigned to the duration of this power. The utmost extent to which, in any cafe, entails are allowed by the laws of England to operate, is during the lives in existence at the death of the teftator, and one and twenty years beyond thefe: after which, there are ways and means of fetting them aside. From the confideration that wills are the creatures of the municipal law which gives them their efficacy, may be deduced a determination of the question, whether the intention of the teftator in an informal will be binding upon the confcience of thofe, who, by operation of law, fucceed to his eftate. By an informal will, I mean a will void in law, for want of fome requifite formality, though no doubt be entertained of its meaning or authenticity: as suppose a man make his will, devifing his freehold eftate to his fifter's fon, and the will be attefted by two only, inftead of three fubfcribing witneffes; would the brother's fon, who is heir at law to the teftator, teftator, be bound in confcience to refign his claim to the eftate, out of deference to his uncle's intention? Or, on the contrary, would not the devifee under the will be bound, upon the difcovery of this flaw in it, to furrender the eftate, suppose he had gained poffeffion of it, to the heir at law Generally speaking, the heir at law is not bound by the intention of the teftator. For the intention can fignify nothing, unless the perfon intending have a right to govern the defcent of the eftate. That is the firft queftion. Now this right the teftator can only derive from the law of the land; but the law confers the right upon certain conditions, with which conditions he has not complied. Therefore the testator can lay no claim to the power which he pretends to exercife, as he hath not entitled himself to the benefit of that law, by virtue of which alone the eftate ought to attend his difpofal. Confequently, the devifee under the will, who, by concealing this flaw in it, keeps poffeffion of the estate, is in the fituation of any other perfon, who avails himfelf of hisneighbour's ignorance to detain from him his property, The will is fo much waste paper, from the defect of right in the perfon who made it. Nor is this catching at an expreffion of law to pervert the fubftantial design of it, for I apprehend it to be the deliberate mind of the legiflature, that no will should take effect upon real estates, unless authenticated in the precife manner which the ftatute defcribes. Had testamentary difpofitions been founded in any natural right, independent of politive conftitutions, I should have thought differently of this question. For then I fhould have confidered the law, rather as refufing its afliftance to enforce the right of the devifee, than as extinguifhing, or working any alteration in the right itfelf. And, after all, I fhould choose to propofe a cafe, where no confideration of pity to diftrefs, or duty to a parent, or of gratitude gratitude to a benefactor, interfered with the general rule of justice. The regard due to kindred in the disposal of our fortune (except the cafe of lineal kindred, which is different) arifes either from the refpect we owe to the prefumed intention of the ancestor from whom we received our fortunes, or from the expectations which we have encouraged. The intention of the ancestor is prefumed with greater certainty, as well as entitled to more refpect, the fewer degrees he is removed from us, which makes the difference in the different degrees of kindred. It may be prefumed to be a father's intention and defire, that the inheritance which he leaves, after it has ferved the turn and generation of one fon, fhould remain a provifion for the families of his other children, equally related and dear to him as the eldeft. Whoever, therefore, without caufe gives away his patrimony from his brother's or fifter's family is guilty not fo much of an injury to them, as of ingratiude to his parent. The deference due from the poffeffor of a fortune to the prefumed defire of his ancestor will alfo vary with this circumftance, whether the anceftor carned the fortune by his perfonal industry, acquired it by accidental fucceffes, or only transmitted the inheritance which he received. Where a man's fortune is acquired by himfelf, and he has done nothing to excite expectation, but rather has refrained from those particular attentions which tend to cherith expectation, he is perfectly difengaged from the force of the above reasons, and at liberty to leave his fortune to his friends, to charitable or public purposes, or to whom he will; the fame blood, proximity of blood, and the like, are merely modes of fpecch, implying nothing real, nor any obligation of themselves. There is always, however, a reason for providing for our poor relations, in preference to others who may be equally neceffitous, which is, that if we do not, nobody elfe will; mankind, by an established confent, leaving the reduced branches branches of good families to the bounty of their wealthy alliances. The not making a will is a very culpable omiffion, where it is attended with the following effects: where it leaves daughters or younger children at the mercy of the eldest son ; where it diftributes a perfonal fortune equally amongst the children, although there be no equality in their exigencies or fituations; where it leaves an opening for litigation; or laftly, and principally, where it defrauds creditors; for by a defect in our laws, which has been long and strangely overlooked, real estates are not fubject to the payment of debts. by fimple contract, unless made so by will; although credit is in fact generally given to the poffeffion of such estates. He, therefore, who neglects to make the neceffary appointments for the payment of his debts, as far as his effects extend, fins, as it has been juftly faid, in his grave; and, if he omits this on purpose to defeat the demands of his creditors, he dies with a deliberate fraud in his heart. Anciently, when any one died without a will, the bishop of the diocese took poffeffion of his perfonal fortune, in order to difpofe of it for the benefit of his foul, that is, to pious or charitable uses. It became neceffary, therefore, that the bifhop fhould be fatisfied of the authenticity of the will, when there was any, before he refigned the right which he had to take poffeffion of the dead man's fortune, in cafe of inteftacy. In this way, wills, and controverfies relating to wills, came within the cognizance of ecclefiaftical courts; under the jurifdiction of which, wills of perfonals (the only wills that were made formerly) ftill continue, though, in truth, no more now-a-days connected with religion, than any other inftruments of conveyance. This is a peculiarity in the English law. Succeffion to inteftates must be regulated by pofitive rules of law, there being no principle of natural juftice whereby to afcertain the proportion of the different claimants; not to mention |