Page:The Green Bag (1889–1914), Volume 25.pdf/274

This page needs to be proofread.

Our Grotesque Inheritance Laws tion to leave inviolate. The Supreme Court of Wisconsin seems to be the only court which asserts that the right to give or take property by will or by inheritance is a natural right incident to ownership which is protected by the Constitution, and which cannot be taken away or substantially impaired by the legislature. The Wisconsin court, in a grandiloquent opinion, has held that the legislature cannot abolish inheritance or wills, and that if the power of disposition were confined to the life of the owner, this would "turn every fee simple title into a mere estate for life, and thus, in effect, confiscate the property of the people once every generation." (Nunnemacher v. State (1906) 129 Wis. 190; 9 L. R. A. (n.s.) 121, note; see also Minot v. Winthrop, 162 Mass. 113; 26 L. R. A. 259.) The point of view of the Wisconsin court is that government is formed primarily to preserve the property of individuals and the dignity of individual posses sions, rather than to assert the rights and welfare of the whole people. It may be admitted that there is a natural right in children to inherit the property of their parents to some extent, and that all legal and moral claims against the deceased should be a charge on his estate. But it is well recognized that, aside from these exceptions, the transmission of property after death is a mere matter of grace, subject at any time to be modified or taken away if not found wise or beneficial. Of the Wisconsin case it has been said: "Not a single other case can be found to support it, and it is opposed to the views of all historians of the law and of all economic writers." (9 L. R. A. (n.s.) 121, note.) The wife and children are entitled to a reasonable portion of the estate, but it by no means follows that they


are entitled to the whole. Dependents should not be left in poverty, but neither justice to the deceased, nor the good of the state, nor the good of the heirs requires that they be left in idleness and luxury. It has been suggested that $50,000.00 or $100,000.00 would be a sufficient provision, even for the son of a millionaire. Parents might well succeed to a certain percentage at least, of the estate as an indemnity and reward for the expense of rearing and educating their children. Brothers and grandparents and collateral rela tives, like uncles and aunts, nephews and nieces and cousins, would ordi narily have no claim to support from the deceased and no just title as heirs to his estate. There is no reason but tradition why collateral relatives, not dependent on the deceased, who may live in a different country from him, who probably never expected anything from the dead man, never did anything for him and who would not have felt called upon to assist him in any way, should take from him at all by inheritance. In such cases, even the most conservative law yer will admit, the state should be recognized as the successor best entitled. Gifts by will should be valid only to a limited amount to secure a reason able indulgence of the wishes of the owner, and a protection against in gratitude and disrespect toward old age in its infirmity, and at the same time, the rights of the wife and children and the interests of the state should be fully recognized and protected. Our system is absolutely inconsistent on its face, and by its history, with any natural or inherent rights to dispose or succeed on death. For a long period in English history there was no right to dispose of land by will. If, however, the testator has a right to dispose of