« PreviousContinue »
movement which succeeded to the feudal movement. The triumph of equality was being prepared by the Roman law, when, by a strange paradox, the lawyers, under the influence of the feudal spirit, made use of Roman forms to arrest the progress of the wise and humane ideas which the Roman law was introducing into the Statute Book. Fearing lest the married daughters, if entitled to a full share, would carry away the patrimony into a foreign family, the lawyers made them, in their marriage-contract, renounce their contingent rights to the succession, whenever the custom was mute as to their exclusion. This renunciation was absolutely null and void, according to the Roman law, therefore they resorted to that infallible panacea of the Middle Ages, by means of which everything could be done and dared-I mean an oath. The daughter swore to observe the renunciation. Laurière says, these renunciations were an importation from Italy, which invaded our French customs; the first experiment of the kind that I can find is indeed in our statutes of the south of France, and these renunciations are of very old date in Italian deeds.
This renunciation, mark, was, notwithstanding its rigour, an encroachment of Roman ideas on feudal ones, for it recognised in the daughter a right of succession on an equality with her brother, and it even reserved to her this right, in case the male posterity of the sons should become extinct. The feudal law had never advanced so far.
But these renunciations, coupled with these reservations, gave occasion to serious difficulties where the daughters of the deceased claimed against the daughters of a previous proprietor. As the renunciation of the latter had only in view the interest of the male heirs, ought they not to be preferred to the daughters of the deceased, who were further removed from the common root, and who had only a subsequent title ? On the other hand, as the deceased had been seised of a fief, ought not, conformably to feudal law, the right of the sisters to be held to have been exhausted, at least so long as lineal heirs remained ?
This delicate question, whose decision depended on the spirit of the original contract, and which, moreover, was often complicated by intermediary dispositions, gave a fine opportunity to statesmen, where the right to a throne was in question, to take that side which most favoured their interests or their desires. This tendency revealed itself in the famous Wars of Succession, as I shall narrate in the concluding chapters of this treatise. Twice in the last century, renunciations set Europe in a blaze ; twice, I assert, the question, from a jurist's point of view, was free from difficulty ; but every pretext is a good one for human ambition, when the stakes of the game are a Crown.
§ 10.-OF THE LAST WILL. We saw that the Germans were not favourable to testamentary dispo
sitions ; they desired specially to preserve the property in the hands of the family. The feudal law was equally opposed to testamentary dispositions, but for another reason. The fief being a grant from the lord, the tenant could not have the right to dispose of it without the lord's consent. On the day of his death, his right to the fief was exhausted ; the heir stepped in (like the modern reversioner), not by virtue of the law, but of the contract, was recognised in his own right, and was in no respect bound to respect another's last will.
Accordingly, in those countries where feudalism maintained itself with the greatest purity-in England, for example--it was not allowed to dispose of a fief, except during lifetime and with the lord's consent; by will only a man's chattels, and even of these only a portion, passed.
The Anglo-Norman text writer, Glanville, says
"If anyone, being infirm, desires to make a will, provided he be not involved in debt, let all his chattels be divided into three equal parts, of which one is due to the heir, and a second to the wife, but let a third be reserved for himself, of which he may dispose as he pleases ; but if he dies without leaving a wife, let him have a half at his disposal. The heritage, however, he cannot affect by his last will, as was said above." •
This prohibition on devising was applied to inherited property which, on the decline of feudalism, took in civil legislation all the privileges of the fief-privileges which were wrested from their primitive aim for the purpose of preserving the estate, not for the lord's grandeur, but for the grandeur of the family.
In France the almost universal practice was to allow the testator freely to dispose of his personal estate, of his acquisitions, which were
* How and when real estate became devisable in England is thus stated in Jacobs' “ Law Dictionary,” title Wills and Testaments :
" By the common law of England since the Conquest, no estate greater than for term of years could be disposed of by testament, except only in Kent, and in some ancient burghs and a few particular manors, where their Saxon immunities by special indulgence subsisted. And though the feudal restraint on alienations by deed vanished very early, yet this on wills continued for some centuries after. But when ecclesiastical ingenuity had invented the doctrine of uses, as a thing distinct from the land, uses began to be devised very frequently, and the devisee of the use could, in chancery, compel its execution. But when the statute of uses had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable. This might have occasioned a great revolution in the law of devises, had not the Statute of Wills been made, about five years after, viz., the 32 Henry VIII., c. I, explained by 34 & 35 Henry VIII., c. 5, which enacted that all persons being seised in fee simple (except femme-coverts, infants, idiots, and persons of non-sane memory) might, by will and testament in writing, devise two-thirds of their lands held in chivalry, and the whole of those held in soccage, which, through the alteration of tenures by the statute of Charles II., amounts to the whole of their landed property, except their copyhold tenements, and these latter pass rather as personal than real property."TRANSLATOR.
almost always treated as personalty, and of a share of the heritage, fixed at a fifth, a fourth, or a third, as the case may be.
"Every gentleman or yeoman may, by our custom, leave by will his personal estate, his acquired estate, and the fifth part of his heritage, to whomsoever he please, except to his children, to anyone of whom he cannot leave more than to another. But the serf can only leave by his will five sols."
What, then, remained for the younger children, if the father exhausted in his will the disposable portion of his property ? Had they nothing to share among them but the difference between the third and the fifth of the inherited estate, an amount which might be very small, if the testator's fortune was chiefly of a personal nature ? Such a violation of the sacred rights of birth would have been quite alien to Teutonic ideas. Says Beaumanoir
“We have said that every man may leave in his will the fifth part of his heritage, all his chattels, and his acquired estate. Nevertheless, if the remainder of his inheritance is not enough to suffice for the maintenance of his children, and the chattels are of a large amount, and he leaves none of them to children, but all to strangers, we cannot admit that such a will holds good ; therefore the will must be suspended, until the heirs may be reasonably maintained according to their rank.
“To this rule there are two exceptions—(1) where the testator makes these bequests as a compensation for wrongs done to a third party ; (2) where the heirs have been guilty of misconduct, including marriages against the father's wish ;* but these exceptions do not apply to the inalienable four-fifths of the heritage.
Observe that Beaumanoir says that the testator could not prefer one child to another, though he might prefer strangers to all. This rigorous maxim prevailed in most of the French customs. “ No one can be at the same time heir and legatee of the deceased,” says the custom of Paris. “ The father and mother," says the custom of Troyes, “cannot advantage one of their children more than another in the matter of the succession." I confess I find something pleasing in this jealousy of the ancient manners ; this inflexibility of the law of succession was powerful guarantee of a good understanding and friendship among brothers and sisters. None need be afraid of the flatteries of a coheir or the caprice of a parent; the exaggerated partiality of a father could give no cause for brethren to hate each other.
In matters of succession, the more you leave to the written law the better. According to the share which it gives, be it well or ill fixed, every one plans his life and regulates his hopes; it is a great guarantee
a of stability in families and in the State, which feels the after-effects of domestic agitations. The full liberty of making a will leaves too much
* An ordinance of Henry II. of France, of the year 1556, permits fathers and mothers to disinherit their children who marry without their consent, the daughters before attaining the age of 25, the sons of 30.
to uncertainty and caprice. At every new succession, there is disappointment, the frustration of legitimate expectations, a shock to private fortunes ; this is a great evil which legislation ought to remedy. A fixed rule laid down beforehand by the law, is better than the unforeseen justice of the testator.
I have only one more remark to make upon the disposable share. It is, that it was subject to the whole of the debts, which, in the old customary law, fastened on chattels in preference to heritages. “For it would be a bad thing if the heir of him who gives the legacies—the heir who only obtains four-fifths of the heritage-were burdened with the payment of debts and damages, while the legatees carried off their legacies paid in full."
(To be continued.)
THOUGHTS SUGGESTED BY A LINE OF MRS. BARRETT
IN CONNECTION WITH ISAIAH LIX. 5.
“My spinning is all done."
Nay, say not so, with still so much to do.
I have but now the heavenly work begun;
It cannot be “ all done."
Earth's care and turmoil, pleasure, pain, or strife,
Oft scattered to the winds a better thought,
What spinning have I done?
Bright youth all vanished, sad and mournful tale,
Day after day of sunshine vainly given;
It cannot be “all done."
How many an act of kindliness had blest
The sick and needy, left to others' care ;
It cannot be “all done.”
How many a word I might so oft have said,
Kind words, to cost me little, uttered not-
What spinning have I done?
What conquests o'er my evil nature gained ?
What loving tokens of repentance given,
What spinning have I done?