1. The law cannot know individuals, nor accommodate itself to the diversity of their wants. All that can be required of it is, that it shall offer the best chance of supplying these wants. It remains for each proprietor, who may, and who ought to know the circumstances in which those who depend upon him will be placed after his death, to correct the imperfections of the law in those cases which it could not foresee. The power of making a will, is an instrument placed in the hands of individuals for the prevention of private calamity.
2. This same power may also be considered as an instrument of authority, confided to individuals, for the encouragement of virtue and the repression of vice in the bosom of families. The power of this instrument, it is true, may be turned in an opposite direction: happily these cases would always form the exceptions to the rule. The interest of each member of the family is, that the conduct of each should be conformable, to virtue, that is to say, to general utility. Passion may produce accidental wanderings, but the law ought to regulate itself by the ordinary course of affairs. Virtue is the prevailing foundation of society: even vicious parents are found as jealous as others, of the honesty and reputation of their children. The man scrupulous in his business would be in despair, if his secret conduct were known to his family: among these he never ceases to be the apostle of that honesty, of which he stands in need from those who serve him. In this respect, every proprietor may obtain the confidence of the law. Clothed with the power of making a will, which is a branch of penal and remuneratory legislation, he may be considered as a magistrate set over the little kingdom which is called a family, to preserve it in good order. This magistrate may do wrong, and it would even seem, that as he is not restrained in the exercise of his power, either by responsibility or publicity, he would be more liable to abuse it than any other magistrate: but this danger is more than counterbalanced by the bonds of interest and affection, which place his inclinations in accordance with his duties. His natural attachment to his children or his relations, is a pledge of his good conduct, which gives as much security as can be obtained for that of the political magistrate; so that, every thing considered, the authority of this non-commissioned magistrate, besides that it is absolutely necessary for minor children, will be more often found salutary than hurtful for adults themselves.
3. The power of making a will is advantageous under another aspect: it is a means of governing, under the character of master, not for the good of those who obey, as in the preceding article, but for the good of those who command. The power of the present generation is thus extended over a portion of the future, and the wealth of each proprietor is in some respect doubled. By means of an assignment upon a time when he shall be no more, he procures a multitude of advantages beyond what he actually possesses. By continuing beyond the term of their minority, the submission of children, the indemnity for parental cares is increased; an assurance is given to the parent against ingratitude; and though it would be more pleasant to think that such precautions were superfluous yet, if we reflect upon the infirmities of old age, it will be perceived, that it is necessary to leave all these factitious attractions to serve as their counterpoise. In the rapid decline of life, it is proper to husband every resource; and it is not without advantage, that interest is made to act as the monitor of duty.
Ingratitude on the part of children, and contempt for old age, are not common vices in civilized societies; but it ought to be recollected, that, more or less, the power of making a will exists every where. Do these vices exist more frequently where this power is most limited? To decide this question, it would be necessary to observe what passes in the families of the poor, where there is little to leave: but still this ground of judgment would be defective, since the influence of this power, established in society by the laws, tends to form the general manners; and the general manners afterwards determine the sentiments of individuals. This power given to parents, renders parental authority more respectable, and the parent who, from his indigence, cannot exercise it, unwittingly profits by it, from the general habit of submission to which it has given birth.
However, in making the father a magistrate, it is proper to guard against making him a tyrant. If the children may do wrong, he may do wrong also; and though the power of punishing them may be given to him, it does not follow that he ought to be authorized to make them die of hunger. Thus the institution of what is called in France a legitime, is a suitable medium between domestic anarchy and tyranny. Even this legitime, parents ought to be allowed to take from their children, for causes determined by the law and judicially proved.
Another question presents itself: Shall a proprietor be allowed to leave his property to whom he pleases, whether distant relations or strangers, in default of natural heirs? In this case, the fiscal resource of which we spoke under the head of successions, would be much diminished; it would only exist in the case of intestates. Here the reasons of utility divide themselves: there is a medium to be taken.
On the one side, in default of relations, the services of strangers are necessary to a man, and his attachment to them is almost the same. It is necessary that he should be able to cultivate the hopes, and recompense the cares, of a faithful servant---to soften the regrets of the friend who has grown old by his side; without speaking of the female who has wanted only a ceremony in order to be called his widow, and of orphans who are his children in the eyes of every body except the legislator.
On the other hand, if to increase the inheritance of the public treasury you take from him the power of leaving to his friends, do you not force him to spend all upon himself? If his capital will be no longer at his disposal the moment he is dead, will he not be tempted to convert it into annuities upon his own life? Will it not encourage his being a spendthrift, and almost operate as a law against economy?
These reasons are without doubt to be preferred to the interest of the revenue. It is necessary at least to leave to the proprietor who has no near relations, the right of disposing of the half of his property after his death, keeping the other half for the public. To be content in this case with the smaller share, would probably be a means of obtaining more. But it would be still better not to attack the principle which permits every one to dispose of his property after his death, and not to create a class of proprietors who should regard themselves as inferior to others, on account of this legal impotence which should have struck the half of their fortune.
All that has been said respecting alienations among the living may be properly applied to wills. Upon the greater number of points, we shall be instructed by their conformity, and in the others by the contrast.
The same causes of nullity which apply to alienations among the living, apply to wills; except that, in the case of undue concealment on the part of the receiver, there must be substituted erroneous supposition on the part of the testator. The following is an example:---I leave a certain property to Titius, who is married to my daughter, supposing this marriage legal, and ignorant of the dishonesty of Titius, who, before espousing my daughter, had contracted another marriage, which was still subsisting.
Wills are exposed to a sufficiently unfortunate dilemma. Shall their validity be permitted, when made upon the bed of death? They are then exposed to undue coercion and fraud. Shall formalities incompatible with this indulgence be required? Testators will then be liable to be deprived of assistance at the moment of their greatest need. Barbarous heirs may torment them, in order to hasten their death, or secure the advantage of a will passed in these forms. A dying person who has nothing to give or to take away is no longer to be feared. In order to reduce these opposite dangers to the lowest term, a multitude of details would be required,[Back to:]