Page:The Green Bag (1889–1914), Volume 25.pdf/272

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Our Grotesque Inheritance Laws


But a deed from these grantors and grantee To the buyer next making the call Sends mistakes to vanish in thin air, For error is nothing at all.

Our Grotesque Inheritance Laws

By Henry Winthrop Ballantine dean of the law school university of montana « TNHERITANCE Laws" I use in A the popular sense to cover all laws relating to the privilege of succeeding to the property of a deceased owner, and of making post mortem dispositions by will. If any part of our law is to come in for well-merited criticism, this part may well claim the palm as being the most unreasonable, antique, pur blind, misdirected and anti-social of the entire system. What must we say of that law which admits the possibility of a father's dis inheriting his children and leaving them without support, even though they be infants of tender years, or be utterly helpless and afflicted; a law, which in spite of needs which beg for fatherly justice and pity, grants him the power to give all to strangers who are happily circumstanced, and to leave his off spring objects of public charity, a charge upon public alms? (See Meier v. Buchter, 197 Mo. 68; note in 6 L. R. A. (n.s.) 202.) As Sir Henry Maine says in his "Village Communities": "The power of free testamentary disposition implies.

the greatest latitude ever given in the history of the world to the volition or caprice of the individual." Compulsory portions of the personal property were formerly prescribed by the common law in favor of the widow and children, who were assured of their "reasonable parts" or shares of the goods, but the power of disposition was extended and made absolute, until the testator could, as now, make a will entirely unjust, unreasonable or even cruel, disinheriting his family and divert ing his estate from every relative or dependent to utter strangers. The only restraints upon disinheritance are the wife's right of dower, and the com munity property system which takes its place in some of the western states, the provisions for homesteads, and the temporary support of the family. This almost unlimited power of disposition in English and American law, in dero gation of the claims of a man's own immediate family, goes farther than the law of any other civilized nation. Under English and American law, there is, as a rule, no necessity for leav