Page:Harvard Law Review Volume 8.djvu/178

162 1 62 HARVARD LAW REVIEW. descent entirely ignored any national right to inherit ; and in Mas- sachusetts, till within twenty years, the father of a person dying without lineal issue took to the entire exclusion of the mother. The actual transmission of estate by will certainly rest on nothing deeper than statutory law.^ " The power to dispose of property by will is neither a natural nor a constitutional right, but depends wholly on statute," says Chief Justice Gray of Massa- chusetts (roo Mass. 235). And it seems that the same is true of descent. For the heir has no claim which the ancestor cannot disregard ; he takes only as the statutes provide ; these statutes vary greatly in different States, and have often been changed and heirs disinherited, without any constitutional question being raised ; and generally the whole estate is, if not more than a cer- tain amount, confiscated and given to the widow. " The legislature may to-morrow, if it pleases," says the Supreme Court of Virginia, "absolutely repeal the Statute of Wills, and that of Descents and Distributions, and declare that upon the death of a party his property shall be applied to the payment of his debts, and the residue appropriated to public uses." Eyre v. Jacobs, 14 Grat. 328, In this country it is usually provided that the owner of property may, by a will executed with certain required formalities, direct to whom all his property shall go on his decease. This extraor- dinary power which, as Sir Henry Maine says, "implies the greatest latitude ever given in the history of the world to the volition or caprice of the individual," is subject to but one restric- tion ; a husband cannot by will deprive his wife of that share of his property to which the law thinks her justly entitled. Nor can a wife deprive her husband of his share in her estate. In all other particulars, with some unimportant limitations, the power of the testator is absolute. A child may be brought up in luxury and turned out on the world without a penny ; the entire fortune may be left to trustees and kept intact for nearly one hundred years; it may be tied up in charities, with direction how every cent shall be spent to the end of time ; finally, it may be so left that it shall be free from seizure by the creditors of the devisee, and even that provision will be respected. So that we see the strange spectacle of men enjoying large income while their butchers and grocers go unpaid. If the owner does not make a will, our statutes then provide that his whole estate shall be divided equally among his nearest relatives, no matter how remote they may be. Now, though wills and descents be creatures of positive law, it ' 104 N. Y. 306J Montesquieu, Esprit des Loix, liv. 27, § i.