§5. 1 now pass to consider how intestate succession is to be regulated. I have before pointed out that the question of intestate succession will tend to be determined in different ways, according to differences in the legal rules and normal habits of bequest; since, where wills are allowed, rules of intestate succession deviating widely from the ordinary habits and customs of bequest would be likely to cause painful disappointment. Hence, assuming freedom of bequest, we have two distinct principles for determining the law of intestate succession; we may either keep as close as possible to the general customs of bequest, or may be guided by considerations of general expediency. But general expediency can, I conceive, lead to no selection of heirs outside the circle of those for whom the deceased was either morally bound or naturally disposed to provide. The question, therefore, can only be between distribution within a defined circle and appropriation by the community.
By the nature of the case this question cannot receive a perfectly definite answer, except in relation to the actual state of opinion and custom in a particular age and country. But we may say generally that any gain thus obtainable by the community would be purchased at too great a cost if it involved bitter disappointment to individuals, of a kind calculated to excite universal sympathy;---as would be the case if a man's children or grandchildren lost their inheritance through his accidental intestacy. I do not, however, think that this result would follow in England from the adoption of Bentham's scheme for distributing intestate inheritance. The chief points in this are:---
Here the exclusion of primogeniture and of the rights of cousins and grandparents, involved in recommendations (2) and (4), are to be noted as markedly opposed to existing English law. On both these points J. S. Mill is in substantial agreement with Bentham; only he would press the principle of (4) still further, holding that ``no rights should be acknowledged in collaterals, and that the property of those who have neither ascendants nor descendants should escheat to the State.'' It seems to me that, on account of the relations of affection that normally attach any person to the other descendants of his parents, Mill's proposed rule would, in cases of accidental intestacy, cause painful disappointment to natural expectations. But I think that the actual expectations of remoter relatives are mainly created by the law; and that, if the law were altered, they would not exist, under ordinary circumstances, to any extent worth considering. I think, therefore, that the exclusion of collaterals in case of intestacy---in the milder degree proposed by Bentham---would furnish a legitimate source of revenue to the community, it being understood that any hardship that might arise from it in special cases, in which the declared and unrevoked intention of a deceased person had been prevented from realisation by sudden death, might be recognised and remedied by the grant of a share of the inheritance.
As regards the principle of distribution within the intestate's family circle, it would seem that Bentham's proposal of equal division, by stocks and not by heads, is more in harmony with ordinary domestic sentiment, and the expectations arising out of ordinary customs of bequest,---and also more in accordance with the individualistic principle---than any other rule which could be conveniently laid down.
Equal division of an intestate's property might no doubt cause some disagreeable shock to expectation in England, in the case of large landed estates which are customarily settled on the eldest living descendant of the eldest line. On the other hand, similar disappointment---causing probably more distress---is now liable to be given to small owners of land and houses, who have never intended inequality of division; and this latter class of persons would appear to need the care of the legislator more than the former, as the richer landowners may be more safely presumed to know the actual state of the law at any time, and therefore to guard against the effects of intestacy, if they dislike them. It would seem, therefore, that the balance of argument is against maintaining primogeniture by law, if we consider merely natural expectations, and leave general expediency out of account; and it does not appear that the general expediency of primogeniture has ever been supported, or could be supported, by arguments that individualists could approve. It is chiefly defended on the ground that large landowners are more likely than small ones to manage their relations with tenants and labourers on other than strictly economic principles; but, from an individualistic point of view, this can hardly be regarded as a result at which the law ought to aim.[Back to:] [Elempol, Chapter 7, Section 4]