Torry v. Bowen Towers v. Moore 217 498, 506 Townley v. Bolton Towns v. Wentworth Townsend v. Ives Townshend v. Downer Vansant v. Boileau 259 486, 491 385 28, 270, 271, 342, 362 145 Varick v. Edwards 390 227 340, 343 THE LAW OF WILLS. CHAPTER I. INTRODUCTION, 1. The right of testamentary disposition, although instinctive, is the offspring of municipal law. 2. The history of testaments, in early ages, matter of curious research. 3. They existed at a very early day among the Hebrews, the Athenians, Romans, &c. 4. The right in England, very much restricted, until a late period. 5. These restrictions no longer exist there, and never existed here, except in regard to the widow. 6. In the State of Louisiana the restrictions of the Civil Law obtain. n. 10. History of the law of wills in England. § 1. 1. THE right of testamentary disposition of property is, unquestionably, one of the results of cultivated social life, and dependent upon municipal law. But it is, nevertheless, an instinctive sentiment, intimately associated with that love of acquisition, and of dominion, which forms the basis, and the stimulus, of all social progress; and which, in its normal development, is the sure measure' of advancing civilization, and, in its morbid excesses, equally marks the process of declension, and the increase of crime. 2. There is a great deal of curious learning in regard to the history and the forms of testaments, among the nations of antiquity, and in the earlier periods of the modern history of European nations, which is of interest, chiefly, as matter of antiquarian research. Mr. Justice Blackstone,1 has given a 1 2 Black. Comm. 488-492. See also, 4 Kent Comm. 501-504. synopsis of the best authenticated facts upon this subject, in a form most agreeable to all readers, and containing all which it is important for the general scholar or the professional student to consult. 3. It is obvious, from instances named in Holy Scripture, that the practice of making testaments existed among the Hebrews in the days of the patriarchs.2 The right of testamentary disposition of property was introduced into Athens by the laws of Solon. It existed among the Romans, in three different forms, before the date of the Twelve Tables.1 And traces of its existence are found among the Germans, and other Continental nations of Europe, at a very early day, and among the very earliest vestiges of judicial history in the island of Great Britain.5 4. But before the Statute of Wills, in England, the right of testamentary disposition of property, in the subjects of the crown, did not extend to real estate, and as to personal estate,7 it was limited, unless the testator had neither wife nor children. If he had both, he could dispose of but one-third of his personal estate by will, the other two-thirds being regarded as the reasonable share of the wife and children respectively; while if he had The case of Abraham, who, in lamenting his want of legitimate heirs, exclaims, that this Eliezer, the steward of, and servant born in, his house, should take his estate, has been quoted by some as an instance of appointing an heir by will. Gen. ch. xv. But the case of Jacob, giving his son Joseph a double portion of the inheritance, which must have been done by will, seems more unquestionable. Gen. ch. xlviii. • Plutarch's Life of Solon; 4 Kent, Comm. 503. Chitty's note to 2 Black. Comm. 491. 62 Black. Comm. 491. 32, 34, and 35 Hen. 8. The term personal estate was then held to include terms for years, and chattel interests in land. Co. Litt. 111 b, n. 1, by Hargrave. But lands held in gavelkind, and in the borough of Kent, were devisable by special custom, from a very remote period. 2 Black. Comm. 84: F. N. B. 198; Launder v. Brooks, 8 Cro. Car. 561. |