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have a right to govern the descent of the estate. That is the first question. Now this right the tes. tator 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 bis 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 mind 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 itselt.
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, inter. fered with the general rule of justice.
The regard due to kindred in the disposal of our fortune (except the case of lineal kindred, which is different) arises either from the respect we owe to the presumed intention of the ancestor from whom we received our fortunes, or from the expectations which we have encouraged. The intention of the ancestor 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 cause, 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 to leave his fortune to his friends, to charitable or public purposes, or to whom he will : the same blood, proximity 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 pot, no one else will; mankind, by an established consent, leaving the reduced branches of good families to the bounty of their wealthy alliances.
The not making a will, is a very culpable omission where it is attended with the following effects : where it leaves daughters, or young 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 situations; 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 debts 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 ecclesiastical courts; under the jurisdiction of which, wills of personals (the only wills that were made formerly) still continue, though in truth no more now-a-days 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
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 the 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;
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.
OF RELATIVE DUTIES WHICH ARE
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 ha. bitual humanity which comes into the place of consideration, to produce a proper conduct towards those who are beneath us, and dependant upon us.
There are three principal methods of promoting the happiness of our inferiors.
1. By the treatment of our domestics and dependants.
2. By professional assistance. 3. By pecuniary bounty.
CHARITY. The treatment of our domestics and dependants. A PARTY of friends setting out together upon a journey, soon find it to be the best for all sides, that while they are upon the road, one of the company should wait upon the rest ; another ride forward to seek out lodging and entertainment; a third carry the portmanteau; a fourth take charge of the horses; a fifth bear the purse, conduct and direct the route ; not forgetting, however, that as they were equal and independent when they set out, so they are all to return to a level again at their journey's end. The same regard and respect; the same forbearance, lenity, and reserve, in using their ser vice; the same mildness in delivering commands ; the same study to make their journey comfortable and pleasant, which he whose lot it was to direct the rest, would in common decency think himself bound to observe towards them; ought we to show to those who, in the casting of the parts of human society, happen to be placed within our power, or to depend upon us.
Another reflection of a like tendency with the former is, that our obligation to them is much greater than theirs to us. It is a mistake to suppose, that the rich man maintains his servants, tradesmen, tenants, and labourers : the truth is. they maintain him. It is their industry which sup