Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 165.: Laws regulating disposition of personal property by will. 2 — - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 165.: Laws regulating disposition of personal property by will. 2 — - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 165.

Laws regulating disposition of personal property by will.2 —

The right of disposing of one’s property as one pleases, by transfer or conveyance inter vivos, is an indefeasible incident of the right of property in personalty. The transfer of real property may, under certain limitations, be restrained or prohibited according to the discretion of the legislature, since lands are acquired by grant from the State,3 subject to the right of the State to determine the conditions and terms upon which they are to be held. But that cannot be done with personal property. Personal property is the product of man’s labor, instead of being the free gift of nature, and one’s right of property is derived from the exercise of dominion over the thing.

It is a part of that lawful dominion over the thing, that the owner has the right to sell or give it away. But the natural right of property, and consequently the natural right of disposition of it, lasts only as long as the natural dominion. When that control which one may claim in consequence of the actual or constructive possession of the thing ceases, the natural right of disposition ceases; and if one has under the law any further control of the thing, it must rest upon positive law. It is, therefore, a legislative privilege, and can therefore be taken away by the same power which gave it. It will, therefore, be conceded that the right to dispose of personal property by will rests upon positive or statutory law, and is therefore subject to legislative regulation and prohibition without limitation. It is not disputed that such is the rule in respect to the disposition of lands by will,1 for we know that the present right to devise lands depends upon the authority of the English statute of wills, enacted in the reign of Henry VIII., or of some American statute, designed to take the place of the English statute; whereas the right to dispose of personalty by testament comes down to us as a common-law right.2 But there can be no doubt that the right to bequeath personal property is as much the creature of positive law, as the right to devise lands. This was the position taken by the Supreme Court of Ohio in a case, in which an act of the legislature was sustained, which provided that a bequest, by a testator leaving issue living, to any religious or charitable purpose, shall be void, if made within twelve months of the testator’s death. The enactment operated as a restraint upon the right to dispose of his personal property by will. In delivering its opinion, the court said: “We hold that the right to acquire property implies the right to dispose of it. But the inalienable rights here declared, as well as those implied, are possessed by living, not dead, men. A disposition by will does not take effect during the testator’s life, but operates only after his death. While the right of testamentary disposition may be, as Mr. Redfield in his work on wills says, instinctive, it nevertheless depends solely on municipal law, and has never been regarded as a natural or inalienable right. It has always been subject to the control of legislative power, and such power is not limited in this State by a constitutional provision.”1

[2]See ante, § 137a, where the subject of the regulation of the right of inheritance is more fully discussed.

[3]See ante, § 119.

[1]See ante, § 119.

[2]See 2 Bla. Com. 491, 492.

[1]Patton v. Patton, 39 Ohio St. 590.