Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1890-07-04
THE LAST TESTAMENT.
An Old Lawyer Says There Is No
Constitutional Power for Making
q Will.

AL OAA Aowy0A says AAoA0 40 NO
Constitutional Power for Making
Will.
Lawyer Waldorf II. Philips told me
some interesting legal facts and fancies
about Wills in talk which l had with
him few days ago, says New York
Star writer:
"Do you know" he said, that
there is no constitutional right to
make a last will and testament
The power to do so is derived from
statutes which, if the Legislature OF
any State saw fit, it could utterly re-
peal and thereby do away with the
power to make a will. There was,
under the common law, power
to make a will regarding per-
sonal property, but no power to make
will of real estate or any in
terest in real estate That power
was first granted by a statute passed
in the time OF Henry VIII. The law
governing wills is based upon the Ro-
man or ecclesiastical law, and was en-
tirely in the hands of the bishops and
church authorities; and, in fact, the
word surrogate means a substitute,
and the surrogates in olden times were
substitutes for the bishops. Prior to
the statute of wills, passed by the
time of Henry VIII, persons disposed
of their property in their lifetime
through the legal device known as
use, or trust, and the bulk Of real es-
tate was practically controlled by the
church. This could not be done now,
because the Legislature of New York,
for example, has abolished all the
forms Of trust and uses, except the
four specified in the statutes, and this
has practically wiped out the whole
system of uses and trusts which was
employed prior to the first statute
giving the power to make will. So,
even in making will to-day, all the
formalities required by the statute be
complied with, or the will will be void,
notwithstanding it expressed the ex-
act wishes of the testator.
"Bearing the historical basis for
making will and these facts in mind,
the question becomes very interesting,
when viewed in connection with the
Henry George land theories and the
doctrines of State socialism, more es-
pecially in view of the collateral in
heritance tax law, passed in 1885 and
amended from 1887 to 1889, under
which large tax has just been paid
in the Stewart and Vanderbilt will
cases. 1t can be readily seen that
here is perfectly legal and constitu-
tional loophole through which, with
out any revolution or bloodshed,
State socialism can become an estab-
lished fact, and the original theory of
the law that the king was the father
of his subjects-the State taking the
place of king here-ultimately be-
comes, not only theory, but an actu-
al fact, so that the dream expressed in
the words, THE fatherhood of God
and The brotherhood of man. may
not be dream entirely.
"The laws of primogeniture an | en-
tailments, which give rise to so many
evils, and which it was the intention
of the trainers of the constitution to
escape, in this country have been
more or less circumvented by the will.
making power, SO that enormous fer
tunes have accumulated and remained
in single families, precisely as they
would have done under the primo
geniture and entailment laws. Now,
If the State can impose, as it does, a
tax of per cent. under the inherit
ance tax law, it can go on and in
crease this tax from time 10 time un-
til the largest part of mans estate
at his death may be taxed into the
State Treasury; and wi lie the present
law expressly exempts bequests or de-
vises to father, mother, brother, SIS
ter or child from the tax, the Legisla-
ture coald apply it to every legacy or
devise.
"Again," he continued, "if the
Legislature repealed the statute of
wills, no owner of real estate could
keep itintact in his family, as has been
done and is being done in cases now,
because he could not dispose of it by
will, because the whole means of uses
and trusts have been abolished, and
because he would have to deed it in
his lifetime, which experience shows
men do not do. Then again, even if
q means should be devised to accom-
plish the object, under the power
which, it has been declared, the Legis-
lature now has to tax legacies and de-
viscs, the state could practically be-
come the successor to the property of
its citizens upon their death. l do not
wish to be construed as favoring any of
these ideas or as entertaining social
lists notions, but the facts I have stated
are worth calling attention to, and
lead to many other thoughts and sug-
gestions which are of interest in show
ing the laws peculiarities.
A PENNSYLVANIA railroad man saws
young men are selected as the drivers
OF locomotives ON fast trains because
old men do not have the nerve to
stand the strain of the terrible speed
OF these trains, and even the nerviest
young man gets afraid of them after
awhile. Then they get to letting up
little in speed, the trains run be-
hind time, the engineers are given
other runs, and new men are mt on