Chapter 4b: Testamentary Succession
There is no extension of property so great as this.
It was very natural to give a man a right to dispose of his property while he lived.
- Therefore, it was long before it could be introduced.
At Rome, the right of making testaments was introduced gradually.
- But a testament supposes him to dispose of a right when he can have none himself.
- He could not transfer his right because the heir has no right from the testament until after the testator himself has none.
- Puffendorf whimsically accounts for this from the soul's immortality.
When a person died and wanted to leave his estate to a son in exile, he would naturally request his neighbours not to take it from him after his own death.
- At first it was only allowed to childless people after the consent of the fellow citizens was obtained.
- This was much the same with adopting children
We naturally find pleasure:
- This request would be regarded, not so much on account of its being his will, as from a kind of piety for the dead.
- in remembering the last words of a friend and
- in executing his last injunctions.
- The solemnity of the occasion deeply impresses the mind.
- Besides, we enter into his dead body and conceive:
- what our souls would feel if they were joined with his body, and
- how much we would be distressed to see our last injunctions not performed
- Such sentiments naturally inclined men to extend property a little farther than a man’s lifetime.
This was the foundation of testamentary succession.
The injury is conceived to be done to the dead person, as we enter into what would be his sentiments were he to live again.
- It was a sort of impiety not to comply with the father’s desire.
- It was no injury to deprive the heir of the estate:
- as there was no law established in his favour, and
- as his being in exile cut off all reasonable expectation of succeeding.
Piety for the dead could take place only with regard to the immediate successor.Therefore initially, the right of making testaments extended only when the person to succeed refuses to succeed.
- This practice is a considerable refinement in humanity.
- It was never practised in a rude nation.
- Before the twelve tables, no Roman had a right to make a will.
- Our Saxon ancestors had no right to dispose of their lands by testament
- There is no such practice in the Old Testament.
If a man died and left his sister’s son heir to him, the man was allowed to say that if the son dies at a certain age, the estate shall go to such another person.
- In this case, another might be appointed.
- This was a further extent of the right.
- This was to prevent the estate from going to foreign relations.
- This was called pupillar substitution.
- Thus, property was still further extended.
Entails are the greatest of all extensions of property.
In the beginnings of society, the state of families was very different from what it is now.
- It is very considerable to give a man power over his property after his death.
- But it is nothing compared to extending this power forever.
But when female succession took place, and women came to be possessed of fortunes, they would not marry without a previous capitulation by which they insured themselves of good usage, and stipulated that some part of their fortune should go to their relations after their death.From this arose a new species of marriage from agreement.
- The wife was subject to the husband.
- At the best, she was only on the footing of a daughter.
- She seldom made any addition to the husband’s estate unless by her own industry.
Initially, this great change in domestic affairs would naturally be complained of.
- It rendered the parties equally independent
On this account, the Voconian law was made at Rome.
- Its ultimate cause was the succession of females.
- People would try to prevent their opulence.
- It brought matters to their ancient footing.
- To elude this law, a fidei commissumwas invented.
- When a man left his estate to a person whom the law would not allow, [he left it to someone else] and took his solemn promise that he would transfer it to the person for whom he intended it.
Augustus made a law obliging the trustee to always restore it.
- He appointed a fidei-commissary praetor for that purpose
- The person to whom the estate was left was called heres fiduciarius
- The person to whom it was to be restored was called fidei commissarius
Thus, property was extended beyond the first successor.
- When this step was gained, they easily advanced further and introduced entails.
Entails were first introduced into the modern law by the ecclesiastics.
- Their education made them acquainted with the Roman customs
- They were the preachers of this doctrine.
- They naturally became the explainers and executors of wills until Theodosius and Valentinian took it from them.
- In England, William the Conqueror restored it to the ecclesiastics
By British customs, a man who has a wife and children can dispose only of 1/3 of his estate by testament.
- If he only has a wife but no children, he can dispose only 1/2.
After the introduction of the feudal system, lands could only be disposed of by testament or by the consent of the superior.
- This is the same way with military services.
Originally in England, there were no entails by will, but by tenure.
- A man held an estate for himself and his heirs.
- But if he had no heirs, he could not alienate it.
- It returned to the superior.
- But if he had heirs he could alienate it.
- Thus, the lord was deprived of his right of reversion.
A law was afterwards made to secure this.
Perpetual entails are the most absurd of them all.
- Testamentary succession cannot happen in them.
- Piety to the dead can only take place when their memory is fresh in the minds of people.
- Thus, a power to dispose of estates forever is absurd.
The earth and its fullness belongs to every generation.
- The preceding one can have no right to bind it up from posterity
- Such extension of property is quite unnatural.
The insensible progress of entails was due to not knowing how far the right of the dead might extend, if they had any at all.
- The utmost extent of entails should be to those who are alive at the person’s death.
- For he can have no affection to those who are unborn.
Entails are disadvantageous to the country's improvement.
- Those lands that never had entails are always best cultivated.
- Heirs of entailed estates do not think of cultivating lands.
- Often they are not able to do it.
- A man who buys land has this entirely in view.
- Generally, the new purchasers are the best cultivators.
Next: Chapter 5