one-and-twenty years beyond these; after which, there are ways and means of setting them aside.

From the consideration 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 testator in an informal will be binding upon the conscience of those who, by operation of law, succeed to his estate. By an informal will, I mean a will void in law for want of some requisite formality, though no doubt be entertained of its meaning and authenticity: as, suppose a man make his will, devising his freehold estate to his s's er's son, and the will be attested by two only, instead of three subscribing witnesses; would the brother's son, who is heir at law to the testator, be bound in conscience to resign his claim to the estate, out of deference to his uncle's intention? or, on the contrary, would not the devisee under the will be bound upon discovery of this flaw in it, to surrender the estate, suppose he had gained possession of it, to he heir-at-law?

Generaly speaking, the heir-at-law is not bound by the intention of the testator: for the intention can sign fy nothing, unless the person intending have a right to govern the descent of the estate. That is the first question. Now, this right the testator 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 exercise, as he hath not entitled himself to the benefit of that law, by virtue of which alone the estate ought to attend his disposal. Consequently, the devisee under the will, who, by concealing this flaw in it, keeps possession of the estate, is in the situation of any other person who avails himself of his neighbour's ignorance to detain from him his property. The will is so much waste paper, from the defect of right in the person who made it. Nor is this catching at an expression of law to pervert the substantial design of it: for I apprehend it to be the deliberate inind of the legislature, that no will should take effect upon

real estates, unless authenticated in the precise manner which the statute describes. Had testamentary dispositions been founded in any natural right, independent of positive constitutions, I should have thought differently of this question: for then I should have considered the law rather as refusing its assistance to enforce the right of the devisee, than as extinguishing or working any alteration in the right

itself.

And after all, I should choose to propose a case, where no consideration of pity to distress, of duty to a parent, or of gratitude to a benefactor, interfered with the genera! rule of justice.

The regard due to kindred in the disposal of our fortune (except the case of meal kindred, which is different,) arises either from the respect we owe to the presumed intention of the ancestor from whom wa received our fortunes, or from the expectations which we have encouraged. The intention of the ancesto. is presumed with greater certainty, as well as entitled to more respect, the fewer degrees he is removed from us; which makes the difference in the different degrees of kindred. For instance, it may be presumed to be a father's intention and desire, that the inheritance which he leaves, after it has served the turn and generation of one son, should remain a provision for the families of his other children, equally related and dear to him as the oldest. Whoever, therefore, without canse, gives away his patrimony from his brother's or sister's family, is guilty not so much of an injury to them as of ingratitude to his parent. The deference due from the possessor of a fortune to the presumed desire of his ancestor will also vary with this circumstance; whether the ancestor earned the fortune by his personal industry, acquired it by accidental successes, or only transmitted 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 those particular attentions which tend to cherish expectation, he is perfectly disengaged from the force of the above reasons, and at liberty te 13

VOL. I.

leave his fortune to his friends, to charitable or public purposes, or to whom he will: the same blood, prox mity of blood, and the like, are merely modes of speech, 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 necessitous, which is, that if we do not, no one else will; mankind, by an established consent, leaving the reduced branches of good families to the bounty of their wealthy alliences.

The not making a will is a very culpable omission, where it is attended with the following effects; Where it leaves daughters, or younger children, at the mercy of the oldest son; where it distributes a personal fortune equally amongst the children, although there be no equality in their exigencies or situation; 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 strangely overlooked, real estates are not subject to the payment of deb's by simple contract, unless made so by will although credit is, in fact, generally given to the possession of such estates: he therefore, who neglects to make the necessary appointments for the payment of his debts, as far as his effects extend, sins, as it has been justly said, 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 diocess took possession of his personal fortune, in order to dispose of it for the benefit of his soul, that is, to pious or charitable uses. It became necessary, therefore, that the bishop should be satisfied of the authenticity of the will, when there was any, before he resigned the right which he had to take possession of the dead man's fortune in case of intestacy. In this way, wills, and controversies relating to wills, came within the cognizance of the ecclesias tical courts; under the jurisdiction of which, wills of personals (the only wills that were made formerly) still continue, though in truth no more nowaday

connected with religion, than any other instruments of conveyance. This is a peculiarity in the English law.

Succession to intestates must be regulated by positive rules of law, there being no principle of natural justice whereby to ascertain the proportion of the different claimants; not to mention that the claim itself, especially of collateral kindred, seems to have little foundation in the law of nature.

These regulations should be guided by the duty and presumed inclination of the deceased, so far as these considerations can be consulted by general rules. The statutes of Charles the Second, commonly called the Statutes of Distribution, which adopt the rule of the Roman law in the distribution of personals, are sufficiently`equitable. They assign 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 half blood, or of consanguinity by the father's or mother's side. The descent of real estates, of houses, that is, and land, having been settled in more remote and in ruder times, is less reasonable. There never can be much to complain of in a rule which every person may avoid, by so easy a provision as that of making his will: otherwise our law in this respect is chargeable with some flagrant absurdities; such as, that an estate shall in no wise go to the brother or sister of the half blood, though it came to the deceased from the common parent; that it shall go to the remotest relation the intestate has in the world, rather than to his own father or mother; or even be forfeited for want of an heir, though both parents survive; that the most distant paternal relation shall be preferred to an uncle, or own cousin, by the mother's side, notwithstanding the estate was purchased and acquired by the intestate himself.

Land not being so divisible as money, may be a reason for making a difference in the course of inheritance; but there ought to be no difference but what is founded upon that reason. The Roman law made none.

BOOK III.

PART II.

OF RELATIVE DUTIES WHICH ARE INDETERMINATE.

CHAPTER I.

CHARITY.

I USE the term Charity neither in the common sense of bounty to the poor, nor in St. Paul's sense of benevolence to all mankind; but I apply it, at present, in a sense more commodious to my purpose, to signify the promoting the happiness of our inferiors.

Charity, in this sense, I take to be the principal province of virtue and religion; for, whilst worldly prudence will direct our behaviour towards our superiors and politeness towards our equals, there is little beside the consideration of duty, or an habitual humanity which comes into the place of consideration, to produce a proper conduct towards those who are beneath us, and dependent upon us.

There are three principal methods of promoting the happiness of our inferiors:

1. By the treatment of our domestics and depen

dants.

2. By professional assistance. 8. By pecuniary bounty.