CHAP. 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 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 absolutely; and confequently he may give or leave them to whom he pleases, there being nothing to limit the continuance of his right, or to reftrain the alienation of it.

But every other species of property, especially

pro

property in land, ftands upon a different foun

dation.

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 using it, and wanting it; confequently ceafes with the use 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 first occupiers after him, and fucceed to the fame want and use.

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 disposition of it, for a million of ages after him; which is abfurd.

The ancient apprehenfions of mankind upon the subject were conformable to this account of it for wills have been introduced into moft countries by a positive act of the state, 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 legislation, and in the economy of civil life. Tacitus relates, that amongst

amongst the Germans they were difallowed; 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 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 induftry; it encourages marriage; it fecures the dutifulness and dependancy 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 these; after which, there are ways and means of setting 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 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 estate. By an informal will, I

mean

1

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 estate to his fifter's fon, and the will be attefted by two only, instead of three, subscribing witnesses; would the brother's fon, who is heir at law to the testator, 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 discovery 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 person intending have a right to govern the descent of the estate. That is the first question. 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 himself to the benefit of that law, by virtue of which alone the eftate ought to attend his difpofal. Confequently, the

devifee

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 from the defect of right in the per

waste paper, fon who made it. Nor is this catching at an expreffion 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 precife manner which the statute describes. Had teftamentary difpofitions been founded in any natural right, independent of pofitive conftitutions, I should have thought differently of this queftion. 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 should choofe to propose a cafe, where no confideration of pity to diftrefs, of duty to a parent, or of gratitude to a benefactor, interfered with the general rule of justice.

The regard due to kindred in the difpofal of our fortune (except the case of lineal kindred, which is different) arises either from the respect we owe to the prefumed intention of the ancestor

VOL. I.

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