WILLS.
THEE are few subjects which, interest the public more, if one may judge from the literature provided for them, than Wills and Will-Making. In the majority of novels some provision in a will is a prominent point, often the point on which the whole plot turns ; and very awkwardly and unsteadily the machine often moves, it being easier to imagine an eccentric claim than to follow out its legal effects. The newspapers usually report will cases at considerable length, it is not so long ago since the religious delusions of a miserable old lady were paraded in all their shocking detail, in the reports of a suit to decide whether her will was valid. News- papers do not report what their readers in general care nothing about, or at any rate will not devote whole columns to such matters while Parliament is sitting. There is nothing strange in all this ; we are all personally interested in wills, in one way or another. Every educated man does-, or ought to, make a will, the careful and provident probably make several in the course of their lives. Nearly every one receives, or at least expects, benefit from some one else's will. And yet how few trouble themselves to think of the reason or meaning of the legal fences which surround the solemn and important act of making a will 1 Many know, more or less accurately, what distribution the law will make of their property if they them- selves make none ; and also, with the same reservation, who are competent to make a will, and how when made it may be revoked. But very few go further, understand historically the origin, or speculate on the intrinsic justice of the legal provisions they know to exist ; and scarcely any consider the question on what principle they have any right to make a will at all.
There are two opposite principles on which succession to the property of a dead man may be regulated ; either he may be absolutely free to dispose of it as he pleases, by signifying his wishes in his lifetime, or the State may determine for him, leaving him no power whatever. Neither of these principles is fully carried out, at any rate in any modern society. The nations, whose citizens are most free in this respect impose regulations, at least as to the form of a will, and usually in cne or two special points as to its substance ; for instance, our own law forbids the testator to tie up property beyond a cer- tain time after his decease. On the other hand, the codes which forbid a man k 443inherit his children leave him the absolute disposal of some fraction of his wealth. Thus in both cases the double principle is recognized, that society has a right to control, by law, succession to property 'of its deceased members, but that it is for the general good that they should have power to distribute at least some part of it by will. What proportion ought to be thus left at the tes- tator's disposal is a question rather of expediency than of right. English society, with its strong tendency towards in- dividual independence, virtually allows him all, for not one man in a million would wish to break the law against perpetuities ; but at the same time, through its equally marked adherence to the traditions of the past, surrounds him with pitfalls and puts up false signposts for his guidance. It may easily be best for the general interests of society that every man should be able to dispose freely of all that was once his, but which death has made him no longer capable of owning. But if so, there is all the more reason why the law should guide him aright, both by regulating in the best possible way the manner in which ownership on his property shall pass in fulfilment of his wishes, and more important still, by establishing just rules on which that ownership will be determined if he expresses no wishes at all.
The law regulating succession ab iatestato is, in fact, a declaration of what, in the opinion of the Legislature, is the- abstractedly just method of dividing a man's property among those he leaves behind him. It is, therefore, of primary importance that this law should be thoroughly equitable, not only that its own operation may work justice, but that it may exercise the right influence over the minds of testators. For however expedient may be the principle of giving every man, the unrestricted right of disposing of his property by will, yet the exercise of that right works injustice in individual instances ; and it becomes especially necessary, more so than in countries where the testator's power is limited, that the law should set a good example. The statutes which apportion the personal property of an intestate, commonly called the Statutes of Dis- tribution, date from the reign of Charles H., and are derived from the civil law administered by the Church, which from the first claimed jurisdiction over wills, and so over the per- sonal estate of all dead men. We need not discuss their provisions, which, on the whole, are tolerably just and satisfac- tory, except, perhaps, in relation to the widow of the deceased, except as they are contrasted with the rules of inheritance to real property. It is enough to recall the principles on which they rest, that the widow is provided for, that all children, male and female alike, receive equal shares, and that the same equality is preserved in distributing the personal effects of a childless man among more distant relations. On the other hand, the inheritance of the real estate of an intestate is governed by the feudal theory, that all land was held of the Sovereign on condition of some service, from which it naturally followed that some one person should succeed alike to the duty and to the tenure of a deceased vassal. Thus the eldest son took all, to the exclusion of his brothers and sisters, sub- ject only to a provision for his mother. This may have been necessary in the days of knight service, but is unjust and meaningless in the present state of society. Yet the in- justice has grown even worse in principle than it originally was, for the burdens have been removed, and the widow's right to leave, having been found a great inconvenience in the transfer of land, has been virtually abolished. The absurdity as well as the iniquity of the present state of the law may be best exposed by an example. A. B. retires from business with 20,0001. Having four sons, whom he intends to portion equally, he need make no will. He buys a small freehold estate for 10,0001., and dies suddenly just as the purchase is completed, without having made a will. Instead of each of his four sons receiving 5,0001., the eldest son inherits the land, worth 10,000/., and a quarter of the personalty also, while the three younger sons are put off with 2,5001. each. If A. B. had purchased a leasehold estate of the same value, the sons would have shared alike, for a leasehold is not real property. It is no answer to a statement of the obvious injustice of this result to say that A. B. might have made a will ; one of the chief functions of the law is to provide that when men do not do their duty, public justice and the true rights of individuals shall not suffer. If the great landed estates of our aristocracy usually passed from father to son, either by will or by succession ab intestato, there would be a very intelligible meaning in the maintenance of the law on its present footing. But inasmuch as there is scarcely a squire in the kingdom whose estate is not settled at the marriage of the heir in each generation in such a manner as to give the present possesaor a mere life interest, very few estates would be affected by any change. Primogeniture is a social institution, not a creation of the law. As such it may some day perish, if society learns to deem it unjust, but it would hold its ground in precisely the same manner as at pre- sent, were the rule of inheritance swept away to-morrow, and the succession to the real, as well as to the personal property of intestates, subjected to the equitable sway of the Statutes of Distribution. The change would be felt only among the commercial and professional classes, as distinguished from the landowners, the classes which buy houses for their own use, or as investments, and do not indulge in the aristocratic habit of enriching eldest sons at the expense of their other children ; and for them it would be an unmixed gain.
Whatever social prejudices may exist, however, in favour of the existing law of inheritance, there can be none in favour of those smaller anomalies which beset wills, of which the worst was created and all were continued by the Wills' Act of 1857. That statute was in one respect a model of legis- lation, for it swept away all the old enactments bodily, and re-enacted such provisions as its framers, thought proper, instead of confirming isolated bits of old statutes, and so creating infinite confusion. But its framers did not approach their task in a philosophical spirit : possibly the temper of society did not admit of fundamental changes, so that it would have been impossible to pass a more comprehensive measure. At any rate, they left untouched the confusion arising from the double representation of every testator who does not leave everything to his executors, his feudal successor being his heir, while his executors represent the persona of the deceased, to use the technical term of the Roman law, which has mainly governed our law of wills apart from real property. A well drawn will, it is true, ought to avoid this difficulty but it is not every man who can afford able lawyers to draw his will ; and it is obviously dis- creditable to our judicial system that such a necessity should exist. So, again, the Wills' Act perpetuated the absurdity of preventing a married woman under any circumstances from devising directly the legal estate in real property, a perfectly useless distinction, since she can dispose of the beneficial interest, and by-a legal subtlety of the legal estate also, and ivorse than useless, since it merely tends to cause expense and uncertainty. The worst iniquity, however, of the present system was directly created by the Act of 1857. Under the old law, marriage, followed by the birth of a child, annulled a man's will, unless provision were otherwise made for the wife and child, a rule somewhat uncertain in applica- tion, but, on the whole, right in principle. By the new Act the mere act of marriage revokes a will, which seems at first sight only an extension and simplification of the old rule, but which in practice works very differently. If there are children, it works rightly enough, they being the natural heirs, after satisfying the wife's claim. But if there are no children, it works most absurdly : it is quite right that the wife should have whatever share the law allots her out of an intestate's estate, but there is absolutely no reason why the man's heir- at-law and next of kin respectively should obtain all his real estate and all his personalty, except the pittance of his widow, rather than the persons whom he deliberately chose in his will. We should exceed all reasonable space and weary our readers' patience were we to expatiate on all the anomalies and absurdities which beset the law of wills; on the theological- sounding mysteries of conversion and election, profitable only to lawyers ; on the impotence of the mortmain restrictions, on the chaos of technicalities which have encrusted the simple rule of giving effect; if possible, to the testator's intentions. Some of them are bound up with other social institutions or beliefs, such as the distinction between reality and personalty, or the dependent position of married women ; some are relics of a state of things long passed away, some are mere anomalies arising from the excessive respect paid to the decisions of some over-refining judge. It might be a very difficult task to construct a just and simple law of wills, in a legal system so complicated as ours, and a society so jealous of its right to do as it pleases with its own property ; perhaps a really equitable law cannot be passed until public opinion has changed in several important respects. But it is still strange that men will bear patiently with evils perfectly remediable, that affect them all, often more than once in their lives. Perhaps it is because testators do not themselves feel the pressure of any difficulties arising under their wills, while executors and trustees are often un- aware that they will be appointed, and can always free them.' selves from personal liability by resorting to Chancery.
Previous page
