CHAP. X. brought about either by an involuntary fact, the man's death intestate, or by a voluntary act, the making of his will.

Intestate succession.

Testamen

tary suc cession.

Intestate is chronologically anterior to testamentary succession. Recent investigators, and especially Sir Henry Maine, have abundantly shown that there is in early times but little trace of individual ownership. Even grown-up children had only the most precarious interest during their lives in the property which they were allowed to handle, and on their deaths their father took possession of it as a matter of course. When the father himself died, his property passed of right to his surviving children, or if he left no children, then to certain precisely designated collateral members of his family, or in default, to that wider family which is known as a 'gens' or clan. The idea that property really belongs to a family group, and that the right of an individual is merely to administer his share of it during his lifetime, may be said still to survive in those provisions against the total disinheriting of relations which modern systems have borrowed from Roman law1, and less obviously in the rights given to next of kin under statutes of distribution. The feudal doctrine as to the succession of the heir-at-law to real property, and of escheat, in default of an heir, to the lord of the fee, is widely different in character. It is as a consequence of this latter doctrine, that no one individual is recognised by English law as succeeding to all the rights of an intestate who dies leaving both real and personal property, and that the heir and the administrator divide between them what under the Roman system devolved wholly on the 'heres.'

The principle that a man may voluntarily select the person on whom his property is to devolve after his death 2 is of later

1 e. g. Code Civil, liv. iii. tit. 2. chap. 3, ' de la Portion de Biens disponible, et de la Réduction.'

2 'Le testament est un acte par lequel le testateur dispose pour le temps où il n'existera plus, de tout ou partie de ses biens.' Code Civil, art. 895. 'Neque enim aliud videtur solatium mortis quam voluntas ultra mortem.' Quint. Declam. 308. A curious a priori justification of Wills is given by Leibnitz: 'Testamenta mero iure nullius essent momenti, nisi anima esset

origin than the principle of intestate succession. Such a selection had at first to be ratified by legislative authority, in order to oust the rights of the relatives. The gradual growth of the power of making a will, from the days when it could only be made in the 'comitia calata,' or in the face of the people drawn up in battle array, 'in procinctu,' through the twelve tables, and the praetorian relaxations, down to the wide liberty enjoyed under the later Empire, is one of the most interesting topics of the history of Roman law. The points to which attention must be directed in studying the subject of testamentary disposition in its fully developed form, and with reference to each of which very various provisions are contained in actual systems of law, are the following:-

(1) The capacity of the testator, as to age, freedom from 'patria potestas,' 'coverture,' or the like.

(2) The effect, if any, to be given to proof that the testator acted under mistake 1.

(3) The formalities necessary for the execution of a will, such as signing, sealing, attestation, or enrolment in a public office; and the special cases in which fewer or more formalities than ordinary are insisted upon 2.

(4) The contents of the will. Whether any relatives must be expressly, or may be only tacitly, disinherited; whether the heir must be instituted before other matters are mentioned; and so forth.

(5) The capacity of the heir, or other person who is to take beneficially under the will. The incapacities, under various systems, of 'incertae personae,' corporations, priests, witnesses, charities and churches.

immortalis. Sed quia mortui revera adhuc vivunt, ideo manent domini rerum, quod vero heredes reliquerant, concipiendi sunt procuratores in rem suam.' Nova Methodus Iurisprudentiae, P. II. § 20.

1 On the differences between Roman and modern English law on this point, see Lord Hardwicke's judgment in Milner v. Milner, 1 Vesey, 106, and Story, Equity Jurispr. § 179.

The formalities will, for instance, be more elaborate in the case of a blind man, less so in the case of a soldier on active service.

CHAP. X.

CHAP. X.

Legacies.

(6) The modes in which a will, when once well made, may subsequently become invalid; as in Roman law by the agnation of a new 'suus heres,' and in English law by marriage; or in which it may be set aside, e.g. by the 'querela inofficiosi.'

(7) Whether the inheritance devolves immediately through the operation of the will, or whether any act is necessary on the part of the heir or executor, such as the 'cretio' or 'aditio' of heirs other than the necessarii' in Roman law1, or the procuring of probate from a judicial authority, which is demanded from an English executor 2.

(8) Whether the heir can refuse to accept, and how far he can claim to be relieved from liabilities in excess of assets.

It may be well to observe that although an English executor does not take the whole property of a person who dies leaving real as well as personal property, yet he may well be regarded as a universal successor, so far as relates to the personal property and the claims upon it3.

One form of singular succession is so closely connected with universal succession under a testament as to be unintelligible apart from it. A Legacy, 'donatio quaedam a defuncto relicta,' is a deduction from an inheritance for the benefit of some one. It is the creation of a claim upon the universal successor, and a distinction is drawn between the 'vesting' of the legacy, 'dies cedit,' and its becoming payable, 'dies venit.' It may be revoked by the testator, or it may 'lapse.' It will 1 Before which the hereditas was described as 'iacens,' and was treated as a juristic person.

2 He may also render himself liable by intermeddling with the estate, when he is said to become 'executor de son tort.'

3 The early history of the English executor is discussed with great learning by Mr. Justice Holmes, The Common Law, p. 347.

'Quae pars iuris extra propositam quidem materiam videtur: nam loquimur de his iuris figuris quibus per universitatem res nobis adquiruntur: sed cum omnimodo de testamentis locuti sumus, non sine causa sequenti loco

...

poterat haec iuris materia tractari.' Gai. ii. 191.

5 Inst. ii. 20. I.

6 Although, according to Neratius, ' ea quae legantur recta via ab eo qui legavit ad eum cui legata sunt transeunt.' Dig. xlvii. 2. 64.

CHAP. X.

be void if inconsistent with any rule of law as to the amount of legacies, or as to the proportion which they may bear to the property which is to remain with the heir, or as to the persons who may receive them. A Legacy must be Donationes distinguished from a 'donatio mortis causa1' which, though it takes effect on the death of the donor, does not do so by way of deduction from the inheritance.

Having now considered the general characteristics of law and of rights, we are in a position to enter upon a more detailed examination of our subject, under the three great heads of 'private,' 'public,' and 'international' law.

'Cum magis se quis velit habere quam eum cui donatur, magisque eum cui donat quam heredem suum.' Inst. ii. 20. I.

mortis causa.

Substantive,

adjective

law.

Normal,

abnormal

rights.

Antecedent, subsequent rights.

CHAPTER XI.

PRIVATE LAW: RIGHTS IN REM.'

THE great department of law, upon a detailed examination. of which we are about to enter, may be most conveniently studied if we distinguish at the outset the main topics which are contained in it. These are to be ascertained by a successive application of the principles of division which were explained in a preceding chapter, in the order which seems best suited to the subject.

6

Private law, as thus treated, is either substantive' or 'adjective,' that is to say, it either defines the rights of individuals, or indicates the procedure by which they are to be enforced.

The rights dealt with by substantive law may be either 'normal' or 'abnormal,' as the persons with whom they are connected are of the ordinary type, or deviate from it.

Both classes of rights are either antecedent' or 'remedial.' A right of the former kind, it will be remembered, is one which exists irrespectively of any wrong having been committed. It is an exceptional advantage granted to the person who is clothed with it. The devisee of a house in Middlesex,