Will

The disposition of one’s property, to take effect after death. Swiub. Wills pt.

1, § 2; Godolphin pt. 1, c. 1, s. 2.

The term will, as an expression of the final disposition of one's property, is confined to the English laws and those countries which derive their jurisprudence from that source. The term testamentum, or testament, is exclusively used in the Roman civil law and by the continental writers upon that subject. Some controversy seems to exist whether the word testamentum is strictly derived from testatum or from that in combination with mentis. There does not seem to be much point in this controversy, for in either view the result is the same. It is the final declaration of the person in regard to the disposition of his property. It is his testimony upon that subject, and that is the expression of his mind and will in relation to it. The practice of allowing the owner of property to direct its destination after his death is of very ancient date. Genesis, xlviii.

22; Gal. ill. 15; Plutarch’s Life of Solon; Roman Laws of the Twelve Tables.

But wills are not like succession, a law of nature. A stage where they are not recognized always, in every society, precedes the time when they are allowed. In their early growth they were not regarded as a nnfethod of distributing a dead man’s goods, but as a means of transferring the power and authority of a family to a new chief. It is not until the latter portion of the middle ages that they become a mode of diverting property from the family or of distributing it according to the fancy of the owner.

Maine, Anc. Law 171-217.

Nor is the power to dispose of property by will a constitutional right. It depends almost wholly upon statute; Brettun v. Fox, 100 Mass. 234. See Tax. “The right to take property by devise or descent Is the creature of the law and not a natural right Magoun v. Bank, 170 U. S. 283, 18 Sup. Ct. 591, 42 L. Ed. 1037; U. S. v. Perkins, 163 U. S. 625, 16 Sup. Ct. 1073, 4l L. Ed. 287; Eyre v. Jacob, 14 Gratt. (Va.) 422, 73 Am. Dec. 367; Pullen v. Wake County Com'rs, 66 N. C. 361; this statement is combated vigorously and the position maintained that it is a natural right in Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, {9 L. R. A. (N. S.) 121, 9 Ann. Cas. 711, where a note collects the cases, finding no case agreeing with the one annotated. The right of disposing of property by will did not exist in early times among the ancient Germans, or with the Spartans under the laws of Lycurgus, or the Athenians before the time of Solon. 4 Kent 502, and note. And in England, until comparatively a recent period, this right was to be exercised under considerable restrictions, even as to personal estate. posthumous In operation. Is unknown to archaic law, and is of comparatively recent introduction wherever we find It." Pollock's Notes on Maine’s Ancient Law. The power to devise land did not exist at common law but Is governed by statute; Gibson v. Van Syckle, 47 Mich. 439, 11 N. W. 261. Until the statute of 32 & 34 Henry VIII., called the statute of wills, the wife and children were each entitled to claim of the executor their reasonable portion of the testator’s goods, i. e. each one-third part. So that if one had both a wife and children, he could only dispose of one-third of his personal estate, and if he had either a wife or child, but not both, he could dispose of one-half; Fit/h.

N. B. 122 H (b), 9th ed.; 2 Saund. 66, n. (9); 2 Bla. Com. 492.

All restrictions are now removed from the disposition of property by will, in England, whether real or personal, by the statute of 1 Viet. c.

26; 3 Jarm. Wills (Randolph & Talcott’s ed.), 731.

As to the history of wills In England, see Bigelow, 3 Sel. Essays, Anglo-Araer.

L. H. 770 (11 Harv. L. Rev. 69).

And in the Roman civil law the children were always entitled to their share, or legitime, being one-fourth part of the estate, of which they could not be deprived by the will of their father. The legitime was by the emperor Justinian increased to one-third part of the estate where there were four or a less number of children, and if more than four then they might claim one-half the estate, notwithstanding the will.

Novell. 18, c. 1; 2 Domat, Civil Law 15.

See Legitime. According to the civil law the naming of an executor was of the essence of a will; and that constituted the essential difference between a will and a codicil; the latter, not making any such appointment ( absque executons eonstitutione), was, on that account, called an unsolemn last will.

Swinb Wills 29.

The executor under a Roman will succeeded to the entire legal position of the deceased. He continued the legal personality of the testator, taking all the property as his own, and becoming liable for all the obligations.

Maine, Anc. Law 12C.

Validity

The homestead laws in some states affect the validity of wills by making void a husband’s devise of homestead land; 3 Jarm. Wills (Rand. & Tal. ed.) 740. See same citation for regulations in various states as to devises to corporations, or for charitable purposes. A testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the state; Weed v. Knorr, 77 Ga. 636, 1 S. E. 167; Russell v. Russell, 84 Ala. 48, 3 South. 900; In re Bissells Will, &3 Neb. 588, 88 N. W. 683. A provision for the purchase and erection of a monument on testators grave is valid; Mellvain v. Ilockaday, 36 Tex. Civ. App. 1, 81 S. W. 54; In re Koppikus Estate, 1 Cal. App. 84, SI Pac. 732. The right of a decedent to recover damages for his death, does not pass by will; Sturges v. Sturges, 126 Ivy. 80, 102 S. W. 884, 12 L. R. A. 1014; Caruthers v. Neal, 12 Ivy. L. Rep. 567, 14 S. W. 599. Provisions annexing to a legacy or devise a condition that it should be forfeited in case the beneficiary contested the will were resorted to very early in England, and were upheld by the courts. The rule established was that where there was probabilis causa Uti yandi, and no gift over of the legacy or devise, an unsuccessful contest of the validity of the will did not forfeit the legacy or decondition would work a forfeiture; 1 Atk. 526. Later it was held that such conditions were not contrary to the policy of the law; 15 M. & W. 727; and a similar decision was rendered by the Privy Council on an appeal from Quebec; L. R. 6 C. P. 1, where the French and civil law is discussed at large. In this country, such conditions have been sustained, though with some difference of opinion as to what constitutes a breach of its condition and its effect Their validity has been upheld in several states; Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; In re Friend’s Estate, 209 Pa. 442, 58 Atl. 853, 68 L. R. A. 447; In re Barandon’s Estate, 41 Misc. 380, 84 N. Y. S. 937; Smithsonian Institution v. Mceeh, 169 U. S. 398, IS Sup. Ct. 396, 42 L. Ed. 793; Fi field v. Van Wyck’s Ex’r, 94 Va. 557, 27 S. E. 446, 64 Am. St. Rep. 745; Rouse v. Branch, 91 S. C. Ill, 74 S. E. 133, 39 L. R. A. (N. S.) 1160, Ann. Cas. 1913E, 1296; Kayhart v. Whitehead, 77 N. J. Eq. 12, 76 Atl. 241, 140 Ain. St. Rep. 575; Moran v. Moran, 144 la.

451, 123 N. W. 202, 30 L. R. A. (N. S.) SOS; In re Miller’s Estate, 156 Cal. 119, 103 Pac. 842. 23 L. R. A. (N. S.) 868; Ma.ssie v. Massie, 54 Tex. Civ. App. 617, 118 S. W. 219.

In these cases generally there was no gift over, and as to the conflict of decisions on this subject, see 14 Y. L. J. 58. The mere filing of a caveat does not constitute a contest within such provision; In re Me Cahan’s Estate, 221 Pa. 18S, 70 Atl. 711. A provision that if any devisee should attempt, or aid in attempting, to prevent the proof of the will, the expense of probating it should be taken from their shares thereunder, is valid; Kayhart v. Whitehead, 78 N. J. Eq. 580, 81 Atl. 1133. Where the net income of a trust fund was given to testator’s son for life, with remainder over, a condition that the gift should fail, if the son contested the will, was void; In re Wall, 76 Misc. 106, 136 N. Y. Supp. 452. In some cases when the legatee had reasonable cause to contest he was held not barred by the provision as to forfeiture; In re Friend’s Estate, 209 Pa. 442, 58 Atl. 853, 68