second assertion we must object that it is contrary to the best-ascertained facts in the early history of law, and I venture to affirm generally that, in all indigenous societies, a condition of jurisprudence in which Testamentary privileges are not allowed, or rather not contemplated, has preceded that later stage of legal development in which the mere will of the proprietor is permitted under more or less of restriction to override the claims of his kindred in blood.
The conception of a Will or Testament cannot be considered by itself. It is a member, and not the first, of a series of conceptions. In itself a Will is simply the instrument by which the intention of the testator is declared. It must be clear, I think, that before such an instrument takes its turn for discussion, there are several preliminary points to be examined,—as for example, what is it, what sort of right or interest, which passes from a dead man on his decease? to whom and in what form does it pass? and how came it that the dead were allowed to control the posthumous disposition of their property? Thrown into technical language, the dependence of the various conceptions which contribute to the notion of a Will is thus expressed. A Will or Testament is an instrument by which the devolution of an inheritance is prescribed. Inheritance is a form of universal succession. A universal succession is a succession to a universitas juris, or university of
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