Perhaps Dr. A. Clarke, (whose name has occasionally appeared in the pages of the Christian Observer), or some other correspondent quali

fied to answer this question, will, by doing so, obligingly meet the wishes of the

INQUIRER.

To the Editor of the Christian Observer. A PERUSAL of the observations inserted in a former number of your valuable work, On the Moral Construction of a Will, has induced me to revise a few remarks which I

put together, about two years ago, on a similar subject. If you do not think them unworthy a place in the Christian Observer, they are at your service,

I am, &c.

X. Y. Z.

HINTS RELATIVE TO THE DUTY AND

MODE OF MAKING A WILL.

Notwithstanding few of the duties that devolve on mankind are of greater importance, or require a closer and calmer consideration, than those which relate to the disposition of property after death, it is a melancholy fact that there are few, if any, in the discharge of which men more frequently fail to give satisfaction to those who are interested in them. The law has provided regulations for those cases in which men die without leaving directions on this subject; and in them consanguinity in its different degrees furnishes the basis of the rule by which the property is distributed. But though it be admitted that these provisions are sometimes as proper as can well be determined, they are often insufficient to embrace claims for remembrance, which in justice ought not to be overlooked; and the proportions in which survivors receive benefit, according to those rules, are, often also, widely different from those

which would meet the wishes, if they could be collected, of the person whose property is thus disposed of. It surely, therefore, cannot be inculcated too often, or too strongly, on mankind in general, be their age and situation whatever they may, seriously to consider, and correctly to point out, in what way they are of opinion the property they possess may be best distributed, when Providence shall deprive them of the power to make use of it.

It is much to be lamented that men are apt, time after time, to put off this important duty. One of the most common reasons for this procrastination appears to be, the difficulty of making up the mind in what manner it may be best performed. But the difficulty will not be diminished by delay; and the same reason for procrastination, if permitted to continue its influence, will prevent a will from being ever made. Sudden deaths are not unfrequent. Health, as well as life, is continually in danger: and in the last sickness the powers of the mind are not unfrequently so much enfeebled by the weakened state of the body, that the difficulty of the work must of course be much increased by it.

It should be remembered also, that a will has not any operation until the death of the testator; and it is capable of revision as long as the testator lives, and as often as he may think it necessary. However desirable it may be, therefore, to make a will perfect at once, this perfection is not indispensible; and if a will be made seriously and de

liberately, it can scarcely fail to afford a greater security for the just distribution of property than if a person die without leaving any directions concerning it. Revisions of a will are not only allowed, but are often highly desirable; and it has been the custom of many wise and good men, regularly to perform this duty on some fixed day in every year, as on a birth-day, or a new year's day, in order, not only to improve their wills by making those alterations which a change of circumstances may render necessary, but also to impress more powerfully on their own minds a sense of the transitory hold they have on all earthly possessions.

It is scarcely necessary to add, that in revising, no less than in making a will, it is essentially important to abstract the mind from unjust prejudices, as well as unreasonable partialities.

In making and revising a will, it is also of the highest importance to be perspicuous in expressing the intention, and accurate in the observance of legal forms. From a deficiency in either of these respects, a very different disposition of the property may perhaps take place from that which the testator intended. A solicitor, therefore, whose honesty and ability, and, if possible, whose friendship can be depended upon, is of the first importance in order to assist the testator in this business. For though a solicitor has nothing more to do, professionally, than to put into legal words, and to make perspicuous the intention of his client, he has often the power to give a bias to the client's mind, and to bring to his recollection both circumstances and persons, which, without a hint from the solicitor, the testator might have wholly overlooked.

It has been the opinion of many - good people, that a will ought not to be criticised, because survivors cannot fully comprehend the motives by which the testator was influenced when he made it. But

those that are disappointed will naturally complain; and if the disappointment be undeserved, it surely affords a matter of just regret to all.

Without adverting to the numerous disproportionate legacies, of which we continually hear, there is too much reason to apprehend that many persons have been omitted in wills, not only from a misconceived opinion, entertained by the testator, relative to their character and claims, but sometimes also from an absolute forgetfulness, at the time of making the will, of their very existence. Believing this to have happened much more frequently than is generally imagined, I beg leave to submit the following hints to the calm consideration of those who sit down to execute this important duty; and if but one person be preserved, by their means, from doing an unintentional injury to those who have a just, if not a legal claim upon them, it will afford ample reward for the little trouble that has been taken in putting them together.

Before I proceed to consider the different parts of a will, one of the first objects for a testator's consideration is the choice of able active and conscientious persons to fill the offices of executors, guardians, and trustees; the nature of which offices, as well as the difference be tween them, will be best explained by the solicitor employed to indite the will. It is obviously desirable for a testator to obtain from the persons whom he intends to nominate for these offices permission for this purpose; and a sense of gratitude for the favour conferred will incline him to leave such executors, guardians, or trustees, a token of regard proportionable, in some degree, to the property bequeathed, and the probable trouble that may devolve upon them. It should be remembered that executors are not obliged to accept the office; and that if all of them refuse to act, one of the next of kin may take out a letter of administration in the same way as if no will had been left,

It may not be unuseful to remark here also, that when two or more are interested nearly alike in the property bequeathed, it is not advisable to make either of them the executor of the will: and for a similar reason, when two or more children are interested in the will of a parent, it is more desirable to commit the execution of it to one or two kind and able friends, or at least to join these with one of the children, than it is to leave the whole of the execution to one or even two of the children without a coadjutor. Though some persons consider a will as having a reference solely to the affairs of the body, and confine themselves in it to the distribution of their worldly possessions, others feel it a duty to begin their will with a confession of faith, and a commission of their souls to Almighty God. They think the example of our Saviour, whose last words were, "Father, into thy hands I commend my spirit," highly proper to be imitated on an occasion not wholly unlike to it: others again, take this opportunity to impress good advice on their children and near connections. To neither can there be justly made on these accounts the smallest objection: but as such transactions do not necessarily appertain to the proper business of a will, the form of words in which they are introduced must be left to the discretion of those who think it right to adopt them.

After committing the soul to Almighty God, the next concern naturally is to make a provision for the decent interment of the body. It is rarely necessary, however, to urge this, since it seems congenial to the best feelings of survivors to embrace the last opportunity that can occur of paying respect to a deceased relative or friend. But, becoming as this duty is, when kept within proper limits, it has some times run into the most extravagant excess. In ancient times, absurdly expensive and even barbarous honours were bestowed on

the dead. Not only slaves, and captives taken in war, were sacrificed at their funerals, but wives also have voluntarily submitted to be burnt on the funeral pile with the bodies of their deceased husbands. In many pagan nations, we read that a similar practice still prevails. And in our own age and country the pageantry that is occasionally exhibited by mock mourners, hired for the purpose, who have sablé dresses, but vacant and even merry faces, is not only ridiculous, but sometimes also reprehensibly injurious, the expense that attends the funeral bearing no due proportion to the rank of the deceased, and essentially diminishing the little property that is left for survivors. In order to restrain this foolish, though perhaps amiable extravagance, testators have not unfrequently thought it right to add an express clause in their wills, that no more than a fixed sum shall be expended upon their interment.

After a care for the soul, and directions for the decent interment of the body, the next point for the consideration of a testator is the payment of his just debts. This should be provided for in the amplest manner. By the laws of England, real estates are not liable to the payment of debts incurred by simple contract, that is, those by oral evidence, or by notes that are unsealed. But if a man wilfully omit to introduce this direction in his will, with a view to prevent his creditors from receiving their right, it has been justly said, he dies with a deliberate fraud in his heart, and leaves an indelible stain on his character.

If again, a man be conscious that he has done an injury to the character, estate, or person of another, the time of making a will is very likely to bring the circumstance to his recollection; and his duty manifestly is to make instant reparation for it:

but if this, unhappily, be omitted during life, it should be done with ample interest after death.

The remarks hitherto made may be said with some propriety to ap

ply to the immediate and personal concerns of the testator. I now proceed to consider that part of a will which is more properly distributive. The first person who has a claim on the testator's recollection, is the wife. It is not possible, in each individual case, to determine the proportion of a husband's property which the wife has a just claim to enjoy;-but when it is considered that the wife has made her interest one with that of her husband, and that, whilst they live, they partake, or ought to partake, mutually, both of cares and comforts, it appears to be the duty of the husband, as far as he is able, to enable her to hold the same rank in society after his death as she enjoyed with him during his life. The law, in default of a will, or of a settlement that bars the dower, or of the customs of particular places, gives the wife one third of the income of her husband's real (that is lapded) property; together with one third of the whole of his personal property, if there be children, and one half of his personal property if there be no children. Various circumstances may render an alteration in this proportion both right and necessary; and it is not unusual for husbands to confine the legacy to their widows to an annui, ty during their lives. A husband, however, discovers a very defective degree of affection and confidence, if he so confine the legacy, either in amount or duration, as to prevent his widow, not merely from continuing in the same style of living which she enjoyed with him, but from an ability to acquire the attentions of her children and those connected with her by occasional liberalities, and by the hope of a testamentary remembrance, when she also is taken away by death*. It appears also to

*Not long since, we were informed in the public newspapers, that a man of high rank in this country died, and bequeathed estates that produced an income of 13,000l. per year to his eldest son; but to his wife, to whom he had been married more than twenity years, and by whom he had had several children, he left au annuity for her life of

be harsh and cruel, unless very strong reasons urge a contrary disposition, to confine the income of a widow to the time of her widowhood. If her comfort be the object intended in the bequest, why should that which might prove the greatest, and which perhaps has been found to be such by the testator himself, be only permitted on condition of relinquishing all the rest ?

Next to the wife, the children of the testator become naturally the objects of his most anxious concern.

The claims of children on a parent differ on various accounts. When large landed property is under consideration, it is the frequent usage in this country, as well as the law in cases of an entail, and when no testamentary disposition is made, to give the greater part, if not the whole of it, to the eldest son. This custom seems to be derived from the old feudal system of keeping up the rank and consequence of the family; and when estates have descended for many generations in this way, a kind of moral right, as well as legal claim, seems attached to the practice. When, however, estates, instead of being hereditarily acquired, are derived from the exertions of the present possessor, it should be well considered whether a more equal distribution among all the children, with a preference to the eldest, be not more consonant to the laws of only 7001. The lady, in addition to this, had a jointure from a previous marriage of 1000l. per year; but the two sums united

were insufficient to enable her to support an

establishment in any degree similar to that she had enjoyed during the life of her hus band. Many instances of the same kind might be adduced, in which a small annuity only has been left to the widow, and a large fortune to one, and sometimes to several chil dren. It has not unfrequently happened that the children, under these circumstances, have, much to their honour, instantly rectified the error of their father, and made their mother easy and independent So we are informed was done in the case above alluded to. But it is to be regretted that a widow should be put to the painful necessity of accepting such a favour.

nature, and more conducive to domestic peace and harmony.*

Personal property is not liable to the same mode of division, when a person dies intestate, with that which obtains with regard to landed property. On the contrary, personal property is divided in equal proportions among all the children, male and female, except the wife survive her husband; in which case, as has been above observed, previous to the division that takes place among the children, the widow is entitled to one third of the whole personal property, in addition, if there be no bar to the dower, to one third of the rent of the landed property during her life.

When children are young, whether they be of one sex or the other, their claims on the parent, with the exception that has been above stated, appear to be nearly equal t: but when they are arrived at mature age, variations may be proper, on account of the different expenses that may have been incurred by each, and the difference that prevails in their conduct and character. When the comfort of a parent has been particularly increased by the attentions and assiduities of one child, who, perhaps, for many years, has been devoted to the service of the parent, whilst the other children have been almost wholly occupied in advancing their own individual interests, it cannot be thought an act of undue partiality, if the parent testify his sense of

We read in the Old Testament, that a preference was given to the first born; but this was a law peculiar to the Jews, and it was only a double portion, and not the whole that was thus given. See Deut.

xxi. 17.

those assiduities by a legacy greater than is left to the other children; but in all such cases, the reasons for making a difference should be clearly expressed, and the disproportion should not be so great as to furnish just ground for envy or variance between the child who has the preference and the other children of the family *.

If one child, by a long continuance in misbehaviour, have embittered a parent's life, and greatly marred his comforts; and if, in addition to this, no signs can be discovered of his returning to a right conduct, it must certainly be both just and proper to make a difference between this child and others who have uniformly behaved dutifully and affectionately. But, even in the worst of these cases, an abandoned child is still a child, and some provision should, if possible, be made for him. His present or his future wife, also, with such family as may descend from him, should be remembered, and provided for; the utmost care being taken to prevent the portion which is left to him, or to them, from being squandered or misapplied by his prodigality and imprudence.

It may be doubted whether there be any good reasons for a general preference of sons to daughters in a will. Experience by no means justifies the

* A grandchild who has been thus devoted to the service of a grandfather or grandmother, or of both, has a claim upon

them nearly equal with that of a child; and if this grandchild be arrived at years of discretion, and has been separated from its parents, for the benefit of such grandfather or grandmother, during the greatest part of its life, he or she has a claim to a greater or smaller provision in the after part of life, in proportion to the abilities of the testator; and it seems an act approaching to injustice and cruelty, to leave the whole of the property to the parents of this grandchild, and to send him or her back to be dependent upon such parents, without any provision, in the same way as if the grandchild had never been separated from

them.