Page images



Judge David Davis...
Hon. James C. Robinson
Judge Scates....



WEDNESDAY, JANUARY 12, 1887. 11. Report of Committee on Legal Education...

..J. L. HIGH 12. Special Address-Relations of Corporations to the Community. .G. W. SMITH 13. Report of Committee on Law Reform......

.THOMAS DENT 14. Special Address-The Beginning of Law in Illinois.

E. G. MASON 15. Special Address-Decline of Liugation and some of the Causes... S. P. WHEELER 16. Report of Committee on Legal Biography.

JAMES B. BRADWELL 17. Report of Committees not otherwise assigned. 18. Resolutions. 19. Miscellaneous Business.

RECEPTION AND BANQUET. Wednesday evening, from 7 to 8:30 o'clock. Reception in Parlors of Leland Hotel, followed by Annual Banquet and Dancing.



Executive Committee.

On motion of Mr. C. C. Bonney, a committee of five was appointed to nominate officers for the ensuing year, and the President was authorized to appoint the Standing Committees.

The President appointed as said committee, Messrs. C. C. Bonney, A. Orendorff, C. C, Strawn, S. P. Wheeler and William Marsh.

Subsequently the committee reported the following:

For President, E. B. Green, Mt. Carmel.
Vice-President, 1st District, J. M. Lansden, Cairo.


H. B. Kepley. Eflingham. 3d

C. L. Capen, Bloomington. 4th

W. L. Vandeventer, Mt. Sterling. 5th

J. H. Eckles, Ottawa. 6th

J. M. Bailey, Freeport.

Thomas Dent, Chicago,
For Secretary. W. L. Gross, Springfield.
For Treasurer, F. H. Jones, Springfield.

[ocr errors]

On motion of Mr. Sherman, the Secretary was instructed to cast the unanimous vote of the Association for the officers named in the roport, and that the President appoint the Standing Committees.

The Secretary reported that he had performed that duty, and the persons named were declared unanimously elected.


On motion of Mr. Orendorff, the thanks of the Association were tendered, and a copy of the-address requested for publication. (See address in Appendix.)



Judge E. P. Kirby read a paper on this subject.

On motion of Mr. Dent, the thanks of the Association were tendered, and a copy of the address requested for publication. (See Appendix.)


President Fuller then read the following letters and telegrams:

[ocr errors][ocr errors][ocr errors]


“WASHINGTON, January 6, 1887 "Hon. M. W. FULLER, President, etc.

"My Dear Sir:-I desire to express to you, and through you to the Illinois State Bar Association. my acknowledgments for the invitation just received, to attend the tenth annual meeting of that organization.

“I regret that my official duties will prevent my attending this meeting; but I find partial compensation in the pleasure afforded me by a recognition of my membership in the legal fraternity. In the midst of much that annoys and perplexes in public life, the incidents of my professional career are among my most comforting reminiscences.

“Ours is called an honorable profession, and such it is. In every path of usefulness is found its members, and with every advance they are found related. With infinite opportunities for harm how few betray their trusts; and how unrelenting is the judgment of the profession upon those few.

“Hoping that the coming meeting of your association will be pleasant and profitable, and that its prosperity and usefulness will be continued, I am

"Yours very sincerely,


" WASHINGTON, D, C., January 9, 1887. “My Dear Sir:-I regret exceedingly that it is not in my power to accept the invita-. tion so kindly extended to me to attend the meeting of the Illinois State Bar Association on the lith. My engagements here are such as to make it impossible. Too much attention cannot be given to meetings of this kind. Their influence must always be for good, and every effort should be made to have them interesting and attractive.

"Sincerely yours, "W. W. FULLER, Esq.


[ocr errors]

"Cordial good wishes for the Bar Association and each of its members. Please express my regret that duties here prevent acceptance of your invitation.


" WASHINGTON, D. C., January 7, 1887. "MELVILLE W. FULLER, Esq.

Dear Sir:-I have just received your kind invitation to attend the meeting of the Illinois State Bar Association, to be held on the 11th and 12th instant. I regret that I cannot accept on account of our being hardly pressed with the business of the court, especially as I see that memorial addresses are to be delivered upon Judge Davis and other eminent persons.

“Very truly yours,


*25 WALTON PLACE. "FRANK H. Jones, Esq., Secretary.

Dear Sir:- I beg to thank the committee for their invitation to be present at the Annual Banquet of the State Bar Association, and to express my regret that my engagements here make it impossible for me to be away from Chicago this week.

"Very truly yours, "CHICAGO, Jan. 10, 1887.


Justices Miller, Field, Matthews and Blatchford, expressed their regrets at their inability to attend the sittings of the Association.

7. COMMITTEE ON GRIEVANCES. No report from this committee.




Mr. H. S. Greene read a paper on this subject.

On motion of Mr. Hurd, the thanks of the Association were tendered, and a copy of the address requested for publication.



Mr. Hurd, of the special committee on Law Reform, reported the following:

At the last annual meeting of this Association, we had the honor of recommending, on behalf of the Committee on Law Reform, a change in the statutes of wills and descent of property, so as to limit the amount one might take by will or by descent from the same person. After some discussion, the subject was re-committed to us for a more full presentation of reasons in favor of the recommendation.

We purposely refrained, in our report, from giving more than suggestions of a possible plan of limitation, preferring rather to consider the feasibility of the proposal apart from the details that belong to its final adoption. We did not advocate any plan that would carry an estate away from the kin of the decedent, but one that would distribute it more widely among them, in other words, break it up into smaller portions than is done in the great estates at the present time, hoping in this way to counteract the growing tendency to mass the wealth of the country in few hands, and keep it on in its course of augmentation through succeeding generations.

For the purpose of illustration, we said the amount a child should take might be limited to, say $500.000; and the amount one standing in the next degree of kinship might take, say $100,000; that those standing in the first degree of kinship should, if the estate is sufficient, be first paid to the full amount of the limitation applicable to that degree. If there were more than sufficient to pay these, the overflow should go to those standing in the next degree of kinship with a like limitation, and so on until the estate is exhausted. If there should happen to remain a surplus after satisfying all known heirs, the balance might go to the State as intestate estates now do when there are no heirs, a thing that seldom happens.

To make the statement more plain, let us suppose an estate to amount to $1,000,000, and the heirs to be as follows: In the first degree a child, and in the second, three brothers, and in the third, ten other persons. The estate would be divided thus: $500,000 to the child; $100.000 each to the three brothers, and the remaining $200,000 among the ten persons in the third degree of kinship, in equal shares, or $20,000 to each; so that, instead of making the one child ruinously rich, four persons would have handsome fortunes, and ten would be given a good start in the world.

We did not propose any restriction upon devises for educational or charitable purposes. It is worthy of note, however, that Virginia, Maryland and New York, and perhaps other States, have enacted laws restricting the amount that may be given by will for charitable purposes.

Upon the question whether such a law would not be evaded by gift inter vivos, and especially in anticipation of approaching death, we think it sufficient to say that the law could be so framed as to avoid all gifts that were in their nature testamentary or were made with intent to defraud the law. It is most likely the law would induce more liberal giving inter vivos, both to assist dependents and for benevolent purposes.

The short discussion at the last meeting of this Association, that followed our recommendation, brought out prominently two questions:

1st. Is the disposition of property upon the death of the owner within the control of the legislative power of the State ?

2d. Would it be well 10 make the change proposed ?

Upon the first question it will not be necessary to spend much time. There has never been a time in the history of the law in this country, when the disposition of property by descent or by will was not regulated by statute. Each State is free to adopt such laws on the subject as it may think best. And no State, so far as we know, has seen fit to impose any constitutional restriction upon the exercise of this power. Mr. Reeves, in his “Treaties on the Law of Descents," in the United States, says: "After the Revolution, the several States composing the confederacy, enacted laws regulating the transmission of real property by descent, not only differing from, but utterly opposed to, the common law of England. The English law of descents had its foundation in principles of feudal policy, in no measure applicable to the existing state of things in this country, and calculated to cherish an aristocratic spirit, hostile to our republican forms of government. When we became a nation, we found ourselves divided into a number of distinct separate sovereignties, each possessing the power to enact laws affecting the property within its own jurisdiction, with which the national government, binding all the States together with political bands, had not the remotest concern. Having rejected the English laws of descent, each State passed laws to regulate the descent of real property for itself, all of them differing greatly from this branch of the common law of England, and each differing from the other." He proceeds to point out some of the differences, and says: “So a jurist, who is most perfectly acquainted with the law of descent in his own State, may be wholly incompetent to give an opinion that may be relied upon, respecting the law of descent in any other State."

Both in England and in this country the power to dispose of property by will is the creature of the statute. Mr. Williams, in his work on Real Property, says: “The right of testamentary alienation of lands, is a matter depending upon act of Parliament," and Mr. Redfield says: "The right of testamentary disposition of property is unquestionably one of the results of cultivated social life and dependent upon municipal law." When we look into the statutes of wills of the different States, we find them almost as variant as the statutes of descent. In some of the States an infant may make a will; in others he can not. In some a married woma has the same acity to dispose of her property that her husband has of his; in others she is not capable of making a will of any but her "separate property.” technically so-called. These statutes are continually undergoing changes. In this state they have quite recently undergone very important

changes. No will has any validity that is not executed, witnessed and proved in the way pointed out by statute, and unless the person making it is expressly included among those empowered to make a will. Even as to those who are empowered to make testamentary disposition of their property.their powers is not unrestricted. A husband or wife cannot will away his or her property so as to deprive the other of a certain share of it, which the statutes of descent give to the survivor. Thus, when the decedent leaves no child or descendants of a child, the surviving husband or wife will take onehalf the real and personal estate in spite of the will of the deceased. There are many other restrictions which lawyers will readily call to mind. There is no constitutional restriction upon the right of the Legislature to make and change these laws to suit the wishes of the people, nor is there any vested right standing in the way. Mr. Proffatt, in his work on Wills, says: "It is claimed that the jus disponendi is a necessary incident of property, an inseparable quality, but if, by the term, we understand a right of disposal while a man lives, we can admit that it belongs to ownership; but it is quite a different thing when a man ceases to live, for then, naturally, he ceases to have dominion, and if he has a natural right to dispose of his goods for a short time after death, why not for a million of years? It is not a natural inherent right of the individual to dispose of his property after his decease; it is no more or less than a right given by positive law, a right which is founded on convenience and concession."

2d. Would it be well to make the change proposed ?

That there is a most serious and a growing discontent among the people having its cause in the relations of property to our social and political welfare, no one will deny. The question upon which we must expect a wide difference of opinion is, just where does the fault lie, and how can it be remedied? We do not profess that we shall be able to answer either of these questions satisfactorily, but we think we shall be able to give some substantial reasons why the recommendations referred to would at least have a favorable tendency, extending with increasing efficiency far into the future.

To prevent the accumulation of large estates in particular families through inheritance and devises, has always been regarded as one of the distinguishing features in the policy of this country. If we look into the matter a little, we shall find that it lays at the very foundation of our system of government, and exercises a most salutary influence upon our social and political welfare, scarcely less powerful than the elective franchise itself; and without which a free ballot would be inconsistent with the permanence of a democratic government. De Tocqueville, speaking of this feature in our policy, says: “I am surprised that ancient and modern jurists have not attributed to these laws a greater influence on human affairs; for they exercise an incredible influence upon the social state of the people, a steady and uniform operation, affecting, as it were, generations yet unborn. Through their means man acquires a kind of preternatural power over the future lot of his fellow-creatures. When the legislator has once regulated the law of inheritance, he may rest from his labor. The machine once put in motion will go on for ages, and advance, as if self-regulated, toward a point indicated beforehand. When framed in a particular manner this law unites, draws together, and vests property and power in a few hands; it causes aristocracy, so to speak, to spring out of the ground. If formed on opposite principles (as in the United States), its action is still more rapid; it divides, distributes and disperses both property and power. Whichever be the tendency, it goes on of its own force, grinding to powder every obstacle in its way." He contends in substance, that the effect of our laws of inheritance (and he intends to include among these the laws against entailment, primogeniture and perpetuities) constantly tends to equality of condition among the people, and coupled with the equality at the polls, gives a peculiar direction to public opinion, a peculiar tenor to the laws; imparts new maxims to the governing authorities and peculiar habits to the gov. erned, modifies whatever it does not produce.

We do not wish to be understood as agreeing with the notion that it is either practicable or desirable to produce an equality as to property, much less a community of ownership or enjoyment; on the contrary we indorse to the fullest extent what is said by Chancellor Kent in his Commentaries: “The sense of property is graciously bestowed on mankind, for the purpose of rousing them from sloth and stimulating them

[ocr errors]
« PreviousContinue »