§2. Let us then consider first restrictions in the interest of the family, as being the older : and, for the sake of definiteness, let us suppose such a plan of restriction as that adopted in the French code. Suppose that a man's property, if he has three or fewer children, is ideally divided into equal shares exceeding by one the number of his children, only one of which he is free to bequeath away from them: while, if he has more than three children, he is free to bequeath away from them one-fourth of his property, but no more; as regards the rest, he cannot deprive any child of its equal share, except for special causes judicially proved.
The objection to such a measure seems to be that, granting it to be desirable that a man's property in a general way should go to his children, the testator evidently has special means of ascertaining his children's wants and deserts; so that any variations from equality of distribution which he may be induced to make, if free bequest is allowed, are likely on the whole to correspond to variations either in their wants or their deserts. On the other side it is urged that the disinheriting of children is liable to give a painful and undeserved shock to reasonable expectations: and no doubt cruel disappointments may thus be caused: But similar mischief may be done in other cases by the tacit encouragement, without any definite and provable promise, of expectations of gift, bequest, or other aid: and in such cases it is generally recognised that the repression of wrong must be left to morality, since law can only protect expectations arising out of definite and demonstrable engagements. And if it be thought that in the present case some special legal interference is needed, owing to the strong support that common opinion gives to the expectations of children to inherit their parents' wealth, it would be easy to prevent the shock of disappointment by requiring a parent who wished to retain his freedom of bequest to notify this to his children before they attained a certain age. The real issue therefore is not whether the disappointment of expectations of inheritance should be prevented, but whether the law should intervene to create such expectations. I know no adequate justification for such interference, so far as it provides that a number of human beings, after being properly educated, shall not have to depend on their own exertions for subsistence: but it if; expedient to secure to all children support and proper training until they can provide for themselves, and it appears to me to be in harmony with the individualistic principle to limit the power of bequest so far as is necessary to secure this result.[Back to:] [Elempol, Chapter 7, Section 1]