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Early Will-Making in New Jersey.



PRIMITIVE IDEAS OF PROPERTY.

The evolution of mankind from primitive savagery to bar-
barism, from barbarism to semi-civilization, and so to fuller
civilization, has been marked at every step through the toil-
some ages by a departure from the idea of tribal, or communal,
or family ownership, to the conception of individual property,
whereby the industrious, the thrifty, the capable, has been as-
sured of the right to possess and enjoy that which he has ac-
quired. As that profound student and keen ol^server, Morgan,
puts it, basing his conclusions chiefly upon his researches
among the American Indians, who present to us a picture of
primitive society in the states of savagery and of barbarism :
In the development of society there were two great stages —
" firstly, changing descent from the female line, which was the
archaic rule, as among the Iroquois, to the male line, which was
the final rule, as among the Grecian and Roman gentes ; and,
secondly, changing the inheritance of the property of a de-
ceased member of the gens, from his gentiles [blood-kin], who
took it in the archaic period, first to his agnatic kindred, and
finally to his children. "^ Sir Henry Maine, also, concludes
that the earliest ownership of land was in the community,
rather than in the individual, although the periodical redistri-
bution of the land among families has been a very general cus-
tom among Aryan peoples from the earliest times. The vil-
lage system, w^hich prevails to this day among the Hindus, and
which seems to have existed among Teutonic peoples to well
within the historic period, was evidently derived from the
primitive idea of tribal or community ownership, but at least
in its later stages undoubtedly recognized individual proprie-

1 Ancient Society, by Lewis H. Morgan, New York, IST-*, p. 64.

i!



X SEMITIC LAWS Ol^ iJESCENT.

torship to a larger extent than has been generally appreciated
or admitted by students, even one so thorough as Maine. ^

THE DESCENT OF PROPEUTV.

As a natural outgrowth of the idea of individual ownership,
or property, there followed the concession of the right, or at
least the propriety, of keeping one's own property in
one's own family, even after death ; and by an easy
step forward, the propriety of having the ancestor's pos-
sessions descend to his children. This, of course, was
a long step from the archaic period, represented in primi-
tive Anierican society, when descent was in the female
line. When property came to descend in the male line it is
reasonable to suppose that the community, or at least the fam-
ily, saw to it that the property was distributed among the sons,
in such a manner as to make the best use of it for the commun-
ity at large. This appears by many of the ancient Hindu laws
regulating descent, as will be shown presently. The earliest
written laws known to us make no provision for the testament-
ary disposition of property, but carefully regulate its distribu-
tion at the owner's decease.

SEMITIC LAWS OF DESCENT.

Among Semitic peoples we have that remarkable Coile of
Hammurabi, King of Babylon, cir. 3300 B. C, the oldest body
of law that has come down to us. Of the two hundred and
eighty-two sections of that Code there are twenty (165 to 1S4)
prescribing the manner in which a man's property may be dis-
tributed by him in his lifetime, and how it shall descend at his
death. Nowhere is he authorized to dispose of it by will, nor
to disinherit a son, even in his lifetime, except with the ap-
proval of a court, after due investigation.

By tlie Hebrews, while at first the system of tribal owner-
ship was recognized the inheritance of the first-born son was
soon insisted on, and flailing male issue the descent was in the
female line.^

1 Village Communities in the East and the West, by Sir Henry Maine, pp. 83,
107, 1C5; Wilson's History of India, L, 415-420.

2 Leviticus, XXV, 46; Numbers, xxvi, 52-56; xxvii, 1-11; xxxvi; Deuteronomy,
xxi, 15-17.



ARYAN I.AWS OF INHERITANCE. Xi

The Koran carefully sets forth the manner in which a man's
estate shall be distributed, making wise provision for his chil-
dren, and failing issue, then for his next of kin, in which we
see indications of the primitive customs of the Arabians. i

ARYAN LAWS OF INHERITANCE.

Among Aryan peoples, the oldest literature we have is tiiat
of the Hindus, as embodied in the Vedas, a great collection of
religious hymns. Upon these have been grafted an infinite va-
riety of religious, philosophical, sociological and legal com-
mentaries, which have developed into systems and codes, in
turn the subject of yet other commentaries. Perhaps the ear-
liest of these outgrowths of the Vedas are tlie Laws of Manu,
probably dating back at least looo B. C. According to his
Laws (IX, 104-11S), on the lather's death the oldest
son was required to support the family, and the broth-
ers to endow their sisters. Gautama's '^ Institutes of the
Sacred Law," dating far back toward the times of
the Vedas, also provide for descent to the sons, with
some modifications according to circumstances. ~ The Viisish-
///a Dharmaj-astra (of uncertain date, but probably very an-
cient) provides (XVII) for the partition of the paternal estate
among the sons, in certain proportions according to the moth-
er's caste, while the daughters " divide the nuptial present of
their mother."^ Apastamba's "Aphorisms of the Sacred
Law," compiled cir. 500 B. C, declare that a man "should
during his lifetime, divide his wealth equally among his (capa-
ble) sons," failing which the inheritance might go to a daugh-
ter. He explains away the ancient Vedas in fivor of primo-
geniture, and the statement that "Manu divided his wealth
among his sons."^ The " Law of Inheritance" as explained
by Br/haspati (cir. i B. C.) is much the same as that given by
Aspatamba, as might be expected, he following closely the an-

1 Sura IV, 8. 13-15. J. M. BodvvcU's edition, London. iSTfi, is excellent, llie
chronological arrangement of llie Suras beintr a desirable feature; but liis trans-
lation is Ics.s accurate than that of E. H. Palmer, Oxford, 1880.

n The Sacred Laws of the Aryas, translated by George Biihler, Part I., Ox-
ford, 1879, pp. 299-307.

■•i Ibid., Part II., Oxford, 1882, pp. 81-92.

i Ibid.. Part I., pp. 132-13.=>.



Xli ARYAN LAWS OF INHERITANCE.

cient code of Manu.i The Naradasmr/ti (cir. A. D. 350-450)
makes many modifications in the earlier codes, and virtually
abrogates the right of primogeniture by declaring that even the
youngest son may undertake the management of the family
property, if specially qualified for the task, and that the mother
shall share equally with the sons, and an unmarried daughter
take the same share as a younger son. The " Thirteenth Title
of Law" in this work, fifty-two sections, is devoted entirely to
the " Law of Inheritance. "2 In the Institutes of Vishnu (cir.
A. D. 400) the laws of inheritance are strictly defined, the
general principle being that " among the sons each preceding
one is preferable to the one next in order, and takes the inher-
itance, and maintains the rest," including those incapable of
self-support. 3 The Baudhuyana (cir. A. D. iioo) contains
elaborate regulations for the distribution of the inheritance
(I, 5, II, 11-14; II., 2, 3, 1-53), a preference being allowed
to the eldest son, the other sons sharing equally, the sons of
mothers of ditlerent castes, however, taking according to the
order of the castes. •*

It is doubtless true, that many of these elaborate laws were
rather an expression of ideals than legislation actually in effect,
but many of the customs or systems they represent, after being
handed down for thousands of years, from the misty times of
the Vedas, exist to-day in the "village communities" of
India, which are so widespread and interesting a feature of that
strange country, and which have preserved through all the
ages much of the thought and practice of primitive times. ^

This imperfect summary of the earliest laws of inheritance
suffices to show the importance attached to the subject by the
Semitic and Aryan precursors of the European races, and the

1 The Minor Law-Books (Nfirada, Bi'ihaspali), translated by Julius Jolly, Ox-
ford. 1889, pp. 9. 272-3, 309-335.

2 Ibid, 9, 188-200,

3 The Institutes of Vishnu, XV-XVIII, translated by Julius Jolly, Oxford. 1S80,
pp. 61-74.

4 The Sacred Laws of the Aryas, ut supra, Part II., pp. 224-2.'?0.

fi For a word of comment on the Hindu laws, see Max Miiller's "Origin and
Growth of Religion," New York, 1879, p. 14.3. See also "Studies in History and
Jrisuprudeuce," by James Bryce, Oxford, 1901, pp. 97-101.



ROMAN TESTAMENTARY LAW. XIU

usages forming the foundation for Grecian, Roman and Teu-
tonic legislation on the subject.

ROMAN TESTAMENTARY LAW.

Without attempting to trace the transition from primitive
customs of inheritance or descent to the more artificial systems
of testamentary disposition of property we may pass at once to
^the Roman law on the subject, the history and character of
which are indicated in the summary given in the Institutes of
Justinian, compiled in the sixth century A. D., wherein it is
related :

" Two kinds of testaments were formerly in use; the one
was practiced in times of peace, and named calatls coniitiis;
because it was made in a full assembly of the people ; and the
other was used, when the people were going forth to battle, and
was stiled procinciuin tesiamentutn. But a third species was
afterwards added, whicli was called per ces et libraviy because
it was effected by emancipation, which was an alienation,
made by an imaginary sale in the presence of five witnesses,
and the libripe^is or balance-holder, all citizens of Rome, above
the age of fourteen ; and also in the presence of him, who was
called the emptor famihv or purchaser. ^ The two former
kinds of testaments have been disused for many ages; and that,
which was made per ccs et Ubram, although it continued
longer in practice, hath now ceased in part to be observed.

" The three kinds of testaments before mentioned all took
their rise from the civil law ; but afterwards another species
was introduced by the edict of the praetor ; for, by the hono-
rary or praitorian edict, the signature of seven witnesses was
decreed sufficient to establish a will without any emancipation
or imaginary sale ; but this signature of witnesses was not re-
quired by the civil law.

1 Before the time of the Decemvirs (cir. 450 B. C.) a Roman citizen declared his
wishes regarding the disposal of his property after his death, to the assembly of
the thirty curiaj or parishes— a relic of tribal or gentile government. By the
Twelve Tables the private testaments of the father of a family were authorized.
He "i)romulgated his verbal or written testament in the presence of five citizens,
who represented the five classes of the Roman people; a sixth witness attested
their concurrence; a seventh weighed the copper money, which was paid by an
imaginary purchaser, and the estate was emancipated by a lictitious sale and im-
mediate release." See Gibbon's admirable discourse on the Civil Law, Chap, xlv,
of his ''Decline and Fall of the Roman Empire;" Livy. Lib. iil, caps. 3;>-35.



XIV ROMAN-DUTCH LAW IN NEW NETHERLAND.

" When the civil and piictorian began to be blended to-
gether partly by visage, and partly by emendation, made by the
imperial constitutions, it became an established rule, that all
testaments should be made at one and the same time according
to the civil law ; that they should be sealed by seven witnesses
according to the prictorian law, and that they should also
be subscribed by the witnesses, in obedience to the con-
stitutions. Thus the law concerning testaments seems to be
tripartite : for the civil law inforces the necessity of having
witnesses to make a testament valid, who must all be present
at one and the same time without interval ; the sacred consti-
tutions ordain, that every testament must be subscribed by the
testator and the witnesses ; and the prtetorian edict requires
sealing, and fixes the number of witnesses.

"What we have already said concerning written testa-
ments, is sufficient. But if any man is willing to dispose of
his effects by a nuncupative testament; i. e., by a testament
without writing, let him be assured, if, in the presence of
seven witnesses, he declares his will by word of mouth, that
such verbal declaration will be a complete and valid testament
according to the civil law."'

THE ROMAN-DUTCH LAW IN NEW NETHERLAND.

The civMl law codified in Justinian's time was somewhat
modified in Western Europe, and in Holland a new code (a
"Political Ordinance") was adopted in 1580, elaborating and
defining the Roman-Dutch Law. According to this system
wills could be made orally, or in writing.

0/-a//y, or by word of mouth, by expressing one's wishes
as to the disposal of the property, to an alderman and the sec-
retary of the local court, or to a notary in the presence of two
witnesses, whereupon the notary reduced the will to writing,
and it was then signed by the testator and the witnesses, and
the notary made a record of the transaction in his official min-
utes.

In writings which having been signed and sealed was
handed to a notary in the presence of two witnesses, the testator

1 Justinian's Institutes, Lib. II., Tit. X., 1.2,3. 14. Private Law among- the
Romans, from the Pandects, bj' John George Phillimore, London. 1S03, pp. 328-
416.



SOME DUTCH WILLS AND ADMINISTRATIONS. XV

at the same time, in their presence, dechirinj^j it to be liis testa-
ment. The notary endorsed it accordingly, and made a minute in
his records, which was signed by the testator and the witnesses.
The notary also kept the original will in his custody, to be pro-
duced only on the death of the testator.

No public record of wills was required, or authorized — a
fact causing untold regret on the part of persons who have
vainly sought for data of their Dutch ancestry in Holland.
The wills and the records of their execution and attestation
were kept by the notary who reduced them to writing, and liy
his family afterwards. The notary being a public, judicial
officer, his action in the matter of wills was regarded as equiv-
alent to the proof and probate required in the English courts.^

SOME DUTCH V/ILLS AND ADMINISTRATIONS.

The Roman-Dutch law carefully guarded the rights of in-
fants, and of intestates, and in the government of New Nether-



Online LibraryNew Jersey Historical SocietyCalendar of New Jersey wills, administrations, etc → online text (page 1 of 76)