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The Green Bag

land by will, the heir has no very strong right of inheritance, and if the heir has any just claim to inherit, the testator has no right to dispose freely by will. If a remote relative has any right to inherit, he should not be entirely excluded by one who stands in closer relationship. Natural right would suggest that accumulations of property, little of which the deceased can have produced himself, should on his death go to the common benefit of society, except so far as needed to satisfy the legal and moral obligations of the owner, who has perforce abandoned them. Unless some claimant can come forward and show a valid and meritorious title, the estate should become vested in the commonwealth as bona vacantia. The most serious indictment of our inheritance laws is their utter failure to recognize what jurists and economists alike assert should be the most funda mental purpose of the law regulating succession to property on the death of the owner; namely, the paramount policy of promoting the just distribution of wealth. (Jas. Morton, Jr., Theory of Inheritance, 8 Harv. Law Rev. 161; Prof. Ely, 153 N. Am. Rev. 54; Mill, Principles Pol. Econ. Bk. 2, Ch. 2, Sec. 3.) Inheritance taxes are an incipient recognition of the true policy, being not so much in the nature of taxes as of a succession pro tanto by the state. But for the most part, our spendthrift law squanders perhaps its greatest oppor tunity to advance economic and social justice, in order to make royal presents to unworthy favorites of fortune, or to indulge to the uttermost the selfish in dividualism of the testator. If the owner does not exercise his caprice and make a will, the law provides that his whole estate shall be divided among his relatives, no matter how

remote, how rich, or how undeserving they may be. Property is allowed to revert or escheat to the state only by accident or as a last resort to prevent a scramble when all other possible or impossible claimants have been ex hausted. It is scarcely surprising that certain portions of our legal fabric, like the laws of inheritance, which we have derived so largely from an age when the functions of the state were little developed, and when government itself was a private matter, should seem almost to ignore the existence of public interests or the rights of the state and the community at large. The time has come to put social justice in the first place. Our scheme of dealing with property on the death of the owner never arose from philosophic or scientific considera tions of public policy nor from refined speculations as to whether it was a desirable social and economic institu tion; it simply grew up empirically from selfish individual instincts, and the customs of a rude society, in which powerful families sought to perpetuate their position and wealth for them selves. The privilege of transmitting prop erty rights to one's heirs or nominees by will, no doubt appeals powerfully to the cupidity of property owners and their families, and would be reluctantly parted with. In feudal times inheri tance well subserved the policy of the law to build up family prestige and perpetuate a powerful landed aris tocracy. But whether in its present form it tends to make men more useful citizens and members of society or subserves our theoretical policy of afford ing equal opportunity to all by reward ing persons for their efforts rather than for the accident of birth, seems more than doubtful. Why should we allow