from whom we received our fortunes, or from the expectations which we have encouraged. The intention of the anceftor is prefumed with greater certainty, as well as entitled to more refpect, the fewer degrees he is removed from us, which makes the difference in the different degrees of kindred. It may be prefumed to be a father's intention and defire, that the inheritance which he leaves, after it has ferved the turn and generation of one fon, should remain a provision for the families of his other children, equally related and dear to him as the eldest. Whoever therefore, without caufe, gives away his patrimony from his brother's or fifter's family, is guilty not fo much of an injury to them, as of ingratitude to his parent. The deference due from the poffeffor of a fortune to the prefumed defire of his ancestor will also vary with this circumftance, whether the anceftor earned the fortune by his perfonal industry, acquired it by accidental fucceffes, or only tranfmitted the inheritance which he received.

Where a man's fortune is acquired by himfelf, and he has done nothing to excite expectation, but rather has refrained from thofe particular attentions which tend to cherish expectation, he is perfectly disengaged from the force of the

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above

above reasons, and at liberty to leave his fortune to his friends, to charitable or public purposes, or to whom he will; the fame blood, proximity of blood, and the like, are merely modes of fpeech, implying nothing real, nor any obligation of themselves.

There is always, however, a reason for providing for our poor relations, in preference to others who may be equally neceffitous, which is, that if we do not, no body elfe will; mankind, by an established confent, leaving the reduced branches of good families to the bounty of their wealthy alliances.

The not making a will is a very culpable omiffion, where it is attended with the following effects where it leaves daughters or younger children at the mercy of the eldest son; where it distributes a personal fortune equally amongst the children, although there be no equality in their exigencies or fituations; where it leaves an opening for litigation; or lastly, and principally, where it defrauds creditors; for by a defect in our laws, which has been long and strangely overlooked, real eftates are not fubject to the payment of debts by fimple contract, unless made fo by will; although credit is in fact generally given to the poffeffion of fuch eftates.

He therefore, who neglects to make the neceffary appointments for the payment of his debts, as far as his effects extend, fins, as it has been juftly faid, in his grave; and, if he omits this on purpose to defeat the demands of his creditors, he dies with a deliberate fraud in his heart.

Anciently, when any one died without a will, the bishop of the diocese took poffeffion of his perfonal fortune, in order to difpofe of it for the benefit of his foul, that is, to pious or charitable uses. It became neceffary therefore, that the bishop should be fatisfied of the authenticity of the will, when there was any, before he refigned the right which he had to take poffeffion of the dead man's fortune, in cafe of inteftacy. In this way, wills, and controverfies relating to wills, came within the cognizance of ecclefiaftical courts; under the jurifdiction of which, wills of perfonals (the only wills that were made formerly) ftill continue, though, in truth, no more now-a-days connected with religion, than any other inftruments of conveyance. This is a peculiarity in the English law.

Succeffion to inteftates must be regulated by pofitive rules of law, there being no principle of natural justice whereby to ascertain the proportion

of

of the different claimants; not to mention that the claim itself, especially of collateral kindred, feems to have little foundation in the law of na

ture.

These regulations fhould be guided by the duty and prefumed inclination of the deceased, fo far as these considerations can be confulted by general rules. The ftatutes of Charles the Second, commonly called the ftatutes of diftribution, which adopt the rule of the Roman law in the diftribution of perfonals, are fufficiently equitable. They affign one third to the widow, and two thirds to the children; in case of no children, one half to the widow, and the other half to the next of kin; where neither widow nor lineal defcendants furvive, the whole to the next of kin, and to be equally divided amongst kindred of equal degrees; without diftinction of whole blood and half blood, or of confanguinity by the father's or mother's fide.

The defcent of real estates, of houses, that is, and land, having been fettled in more remote and in ruder times, is lefs reasonable. There never can be much to complain of in a rulę, which every person may avoid by so easy a provision as that of making his will; otherwise, our law in this respect is chargeable with fome flagrant abfurdities; such as that an estate shall in

go

no wife to the brother or fifter of the half blood, though it came to the deceased from the common parent; that it shall go to the remotest relation the inteftate has in the world, rather than to his own father or mother, or even be forfeited for want of an heir, though both parents furvive; that the most distant paternal relation fhall be preferred to an uncle or own coufin by the mother's fide, notwithstanding the estate was purchased and acquired by the inteftate himself.

Land not being so divisible as money, may be a reason for making a difference in the course of inheritance; but there ought to be no difference but what is founded upon that reason. The Roman law made none.

MORAL