Entails as Testamentary Succession

Entails engrossed land the most and therefore, it took the longest to be established.

It was very natural to give a man a right to dispose of his property while he lived.

But a testament supposes that he has this right even after death. This right could not be transferred because the heir does not have the same right.

Puffendorf whimsically accounts for this from the soul’s immortality.

At Rome, the right of making testaments was introduced gradually. At first, it was only allowed to childless people after the consent of the fellow citizens was obtained. This was similar to adopting children.

When a person died and wanted to leave his estate to a son in exile, he would naturally request his neighbours not to take it from him after his own death. This request would be regarded as a kind of piety for the dead and not so much because it was his will.

We naturally find pleasure in remembering the last words of a friend and in executing his last injunctions. The solemnity of the occasion deeply impresses the mind. We enter into his dead body and conceive what our souls would feel if they were joined with his body, and how much we would be distressed to see our last injunctions not performed. Such sentiments naturally inclined men to extend property a little farther than a man’s lifetime.

This was the foundation of testamentary succession. It was a sort of impiety not to comply with the father’s desire. It was no injury to deprive the heir of the estate=

• as there was no law established in his favour, and
• as his being in exile cut off all reasonable expectation of succeeding.

The injury is conceived to be done to the dead person, as we enter into what would be his sentiments were he to live again.

This practice is a considerable refinement in humanity. It was never practised in a rude nation, such as=

• in Rome before the twelve tables,
• in Britain under our Saxon ancestors, and
• in the Old Testament.

Piety for the dead could take place only with regard to the immediate successor. Therefore initially, the right of making testaments extended only when the person to succeed refuses to succeed. In this case, another might be appointed. This was a further extent of the right.

If a man died and left his sister’s son heir to him, the man was allowed to say that if the son dies at a certain age, the estate shall go to another person. This was to prevent the estate from going to foreign relations. This was called pupillar substitution. Thus, property was still further extended.

Entails are the greatest of all extensions of property. It is very considerable to give a man power over his property after his death. But it is nothing compared to extending this power forever.

In the beginnings of society, the state of families was very different from what it is now=

• The wife was subject to the husband.
• At the best, she was only on the footing of a daughter.
• She seldom made any addition to the husband’s estate unless by her own industry.

But when female succession took place, and women came to be possessed of fortunes, they would not marry without a previous capitulation by which they insured themselves of good usage, and stipulated that some part of their fortune should go to their relations after their death.

From this arose a new species of marriage from agreement. It rendered the parties equally independent.

Initially, this great change in domestic affairs would naturally be complained of. Its ultimate cause was the succession of females. People would try to prevent their opulence.

On this account, the Voconian law was made at Rome.

It brought matters to their ancient footing. To elude this law, a fidei commissumwas invented. When a man left his estate to a person whom the law would not allow, [he left it to someone else] and took his solemn promise that he would transfer it to the person for whom he intended it.

Augustus made a law obliging the trustee to always restore it.

He appointed a fidei-commissary praetor for that purpose1 The person to2 whom the estate was left was called heres fiduciarius The person to whom it was to be restored was called fidei commissarius

Thus, property was extended beyond the first successor.

When this step was gained, they easily advanced further and introduced entails.

Entails were first introduced into the modern law by the ecclesiastics.

Their education made them acquainted with the Roman customs3 They were the preachers of this doctrine. They naturally became the explainers and executors of wills until Theodosius and Valentinian4 took it from them. In England, William the Conqueror restored it to the ecclesiastics5

By British customs, 6 a man who has a wife and children can dispose only of 1/3 of his estate by testament.

If he only has a wife but no children, he can dispose only 1/2.

After the introduction of the feudal system, lands could only be disposed of by testament or by the consent of the superior.

This is the same way with military services.

Originally in England, there were no entails by will, but by tenure.

A man held an estate for himself and his heirs. But if he had no heirs, he could not alienate it. It returned to the superior.

But if he had heirs he could alienate it. Thus, the lord was deprived of his right of reversion.

A law was afterwards made to secure this.

Perpetual entails are the most absurd of them all.

Testamentary succession cannot happen in them. Piety to the dead can only take place when their memory is fresh in the minds of people. Thus, a power to dispose of estates forever is absurd.

The earth and its fullness belongs to every generation. The preceding one can have no right to bind it up from posterity. Such extension of property is quite unnatural.

The insensible progress of entails was due to not knowing how far the right of the dead might extend, if they had any at all. The utmost extent of entails should be to those who are alive at the person’s death. For he can have no affection to those who are unborn.

Entails are disadvantageous to the country’s improvement. Those lands that never had entails are always best cultivated. Heirs of entailed estates do not think of cultivating lands and are often not able to do it. A man who buys land has this entirely in view. Generally, the new purchasers are the best cultivators.