§1. The right of Bequest, and the title to property arising out of it, comes naturally to be considered after the rights arising out of contract. Indeed, a bequest made and accepted under conditions may be regarded as a kind of contract between the dead and the living. It follows that bequests should only be treated as valid under limitations generally similar to those which we have minutely examined in the case of contract; i.e. they must be liable to be invalidated, in whole or in part, by the absence of mature reason, or the presence of coercion or deception. It has to be observed, however, that where bequest operates some fresh legal intervention would be necessary even if there had been no bequest; since it would be manifestly opposed to the interest of the community that the wealth left by a dead man should be liable---like things thrown away during life---to become the property of the survivor who seized it first. There must therefore be in any case a Law of Intestate Inheritance: and it might seem simpler to consider first the plan on which such a law should be constructed, before proceeding to discuss the conditions under which bequest should be allowed. But, on the whole, it seems to me better to adopt the opposite order; since, when wills are allowed any rules deviating widely from normal customs of bequest would be likely to cause painful disappointment of expectation: hence the regulation of intestate succession will reasonably be determined to some extent on different grounds, according to the nature of the restrictions placed on the right of bequest.
To many Englishmen at the present day the right not only of distributing one's wealth after death, but of ordering the details of its use for all time, seems to be naturally and almost necessarily included in the Right of Property, that is, unless the wealth has been given or bequeathed to the owner under special limiting conditions. In fact, however, the right of free bequest is of comparatively late growth in the development of society. As Maine has pointed out, ``in all indigenous societies a condition of jurisprudence, in which testamentary privileges are not contemplated'', precedes that in which free testation is permitted; and even in medieval law we find that liberty of bequest was at first closely limited by the rights of the testator's widow and children. The power of diverting the whole of a man's property from the family, or of distributing it quite capriciously, is not older than the later portion of the Middle Ages. ``When modern jurisprudence first shows itself in the rough'', wills are rarely allowed to interfere with the right of the widow to a definite share, and of the children to certain fixed proportions, of the common inheritance. And similar restrictions are actually maintained in the French Civil Code and several other legal systems; partly owing to the remarkable persistence of the older view of family right---when so much of less ancient origin was swept away in the revolutionary era---but partly, no doubt, from the desire to prevent the inequalities resulting from primogeniture.
I have allowed myself this brief historical digression, because it is almost required to explain the peculiar position which this point in the individualistic scheme occupies at the present day.
Freedom of Bequest, on the one hand, has not completely emancipated itself from the old traditional restraints in the interest of the family; and, on the other hand, it is assailed by new limitations, proposed in the interest of the community. Now we have before seen that Bequest occupies a somewhat different position from other rights included in our common conception of the Right of Property, when the question of allowing it is treated on purely individualistic principles: since the consideration of it seems prima facie to lead us to an ``antinomy''---a pair of irresistible arguments on opposite sides of the question. From a utilitarian point of view, indeed, the encouragement that the right of bequest gives to industry and thrift seemed to be a decisive consideration in favour of allowing it. This consideration, however, though decisive in favour of some freedom of bequest, does not clearly negative the imposition of greater restrictions on bequests than we think it expedient to impose on a man's power of transferring property during his life. An individualist, therefore, may admit such restrictions, in the interest either of the testator's family or of the community, without a palpable abandonment of his fundamental principle.[Back to:] [Elempol, Chapter 6, Section 7]