§ 7 Limitations of bequest and inheritance. The term bequest implies a will, usually a written will in which the person, in anticipation of death, expresses his wishes as to the disposition of his property. It is said sometimes that bequest is a "logical" result of private property, but the law does not 3 See 3.
treat it as necessary. The right of bequest, or of gift at death, is limited in various ways in different countries. In countries where hereditary aristocracies exist, primogeniture is in some cases required by law, in others so strongly favored by public opinion that it is practically always followed. Custom limits bequests in England to members of the family, and wills giv ing outside the family are rare, and are almost always broken in the courts. John Stuart Mill contrasted this with the prac tice in America, frequent even in his day and still more fre quent now, of rich men giving for public purposes. In France the right of bequest outside the family is legally lim ited; only the share of one child can be willed away by the father, and the rest must be equally divided among the chil dren. "Settlements" and fidei commissa are limited in many countries because of the recognized social evils resulting from the tying up of estates for generations. Throughout the his tory of England, Parliament has given attention to the ques tion of mortmain, which chiefly concerned the drifting of great estates into the hands of the church or of corporations as the result of bequests by the pious. In England, of late (and to a less extent in this country), the policy of permitting unlim ited endowments to charitable institutions has been seriously questioned, and by legislation some of the old endowments have been diverted from their original purposes when these have ceased to be of social utility. Inheritance, in contrast with bequest, usually means succession to the property of one who has died intestate, that is, has made no will. The law of inheritance likewise varies greatly with time and place.
§ 8. Social expediency of private property. In the light of history and of present political philosophy, the explanation and justification of private property must be on grounds of social expediency. This is a broad explanation, and it has the fault of a broad explanation that it needs to be further explained. Under it can be brought the many varying con
ditions. Even if private property works hardships to in dividuals in many cases, it may be justified if, on the whole, it gives the best results that are practically possible. Laws must be judged by their average working, not by exceptional cases. In general, the system of private property must be judged by this test: Does it advance the welfare of the nation better than would any alternative plan for the control of economic wealth? The question is not whether it is fault less, for no human institution is so. Nor must it be assumed that the rule of property needs to be uniform in respect to all kinds of wealth. There are many kinds of property, and the test may be applied separately to the different forms and to the varying degrees of property rights. The varied and often strict limitations of property mentioned above are all determined by some thought, wise or foolish, of social ex pediency. In the last chapter have been seen many examples of the fact that different parts of wealth may be treated in different ways : there may be private property in wagons, and public property in roads; private property in houses, and public property in forests; private property in automobiles, and public property in railway carriages. But any rule of property, like any other workable human law, must be applicable to all individuals who meet the conditions.
The very acceptance of the theory of social expediency im plies the need of frequent readjustment of the institution of private property. The essential thought in the various at tacks on the institution of property is that, because it either causes or makes possible the inequality of incomes, it is not socially expedient. Private property, as it is found to-day, is complicated by many historical accidents. Survivals of ancient injustice and relics of feudal institutions that rest on no vital reason remain in our new country as well as in the older ones. The limits of property in many respects are de termined, not according to the logic of expediency, but by the social inertia that often governs successive generations.