СНАР. XXIII. WILLS. TH HE fundamental queftion upon this fubject is, whether 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 ftate 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, especially property in land, ftands upon a different foundati on. 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 ceases with the use and want; so that at his death the eftate 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, Moreover, as natural rights 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 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 ftate, as by the laws of Solon 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 disallowed; and, what is more remarkable, in this country, fince the conqueft, lands could not be devised by will, till within little more than two hundred years ago, when this privilege was reftored to the fubject, 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. Ít invites to induftry; it encourages marriage; it fecures the dutifulness and dependency of children. But a limit must be affigned to the duration of this power. The utmoft extent to which, in any cafe, entails are allowed by the laws of England to operate, is during the lives in exiftence at the death of the teftator, and one and twenty years beyond thefe after which, there are ways and means of fetting them afide. From the confideration that wills are the creatures of the municipal law which gives them their efficacy, may be deduced a determination of the queftion, 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. 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 fuppofe a man make his will, devising 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, be bound in confciènce 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 difcovery of this flaw in it, to furrender the eftate, fuppofe he had gained poffeffion of it, to the heir at law? Generally fpeaking, 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 estate. 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 teftator can lay no claim to the power which he pretends to exercife, as he hath not entitled himfelf 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 himself of his neighbour's ignorance to detain from him his property. The will is fo much wafte 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 defign of it, for I apprehend it to be the deliberate mind of the legislature, that no will fhould take effect upon real eftates, unless authenticated in the precife manner which the ftatute describes. Had teftamentary difpofitions been founded in any natural right, right, independent of pofitive conftitutions, I should have thought differently of this question. For then I should have confidered the law, rather as refufing its affiftance to enforce the right of the devifee, than as extinguishing, or working any alteration in the right itself. And after all, I fhould choose to propose a case, where no confideration of pity to diftrefs, of duty to a parent, or of gratitude to a benefactor, interfered with the general rule of juftice... The regard due to kindred in the difpofal 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 anceftor from whom we receive our fortunes, or from the expectations which we have encouraged. The intention of the anceftor 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 eldest. 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 ingratitude to his parent. The deference due from the poffeffor of a fortune to the prefumed defire of his ancestor will alfo, vary with this circumfiance, whether the anceftor earned the fortune by his perfonal induftry, acquired it by accidental fucceffes, or only tranfmitted the inheritance which he received. Where a man's fortune is acquired by himself, and he has done nothing to excite expectation, but rather has refrained from thofe particular attentions which tend to cherish expectation, he is perfectly difengaged from the force of the above rea fons, fons, 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 fpeech, implying nothing real, nor any obligation of themselves. There is always however a reafon 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 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 fon; 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 lastly, and principally, where it defrauds creditors; for by a defect in our laws, which has been long and ftrangely overlooked, real estates are not fubject to the payment of debts by fimple contract, unless made fo by will; although credit is in fact generally given to the poffeffion of fuch eftates. 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 purpofe 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 diocefe took poffeffion of his perfonal fortune, in order to difpofe of it for the benefit of his foul, that is to pious and 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 |