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.
  • At Rome, the right of making testaments was introduced gradually.
  • 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.
  • We naturally find pleasure:
  • 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.
  • 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.
  • If a man died and left his sister’s1 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.
  • 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.
  • 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.
  • Initially, this great change in domestic affairs would naturally be complained of.
  • On this account, the Voconian law was made at Rome.
  • Augustus made a law obliging the trustee to always restore it.

    Thus, property was extended beyond the first successor.

    Entails were first introduced into the modern law by the ecclesiastics.

    By British customs, 6 a man who has a wife and children can dispose only of 1/3 of his estate by testament.

    After the introduction of the feudal system, lands could only be disposed of by testament or by the consent of the superior.

    Originally in England, there were no entails by will, but by tenure.

    A law1 was afterwards made to secure this.

    Perpetual entails are the most absurd of them all.

    The earth and its fullness belongs to every generation.

    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.

    Entails are disadvantageous to the country's improvement.

    Next: Chapter 5