A distinction, which still persists, was made by the feudal law between real and personal property. The rules of primogeniture and en tail were at first forced upon weak sovereigns by the more powerful of their vassals, who com pelled the feeble grantors to write these rules into the charters or deeds creating the feudal benefices. The conditions of the grant were then confirmed by pactes de famille (family settle ments or house laws) and, finally, the rules were embodied in the customary or common law. The power to sell or devise land freely by will was attained only after several centuries of struggle in courts and parliaments; and from the great landowners came the most determined opposition to the proposal to relieve their prop erty from feudal bondage. The restrictions upon the conveyance of land were not consid ered a hardship by them. As Sir Henry Maine remarks: •Into the preference for primogeni ture there entered no idea of disinheriting all the children in favor of one. Everybody would have suffered by the partition of the estate; everybody gained by its consolidation. The family grew stronger by concentration of power; and it is not_ likely that the son invested with the inheritance had any advantages over his brethren in occupation, interests and indul gences" The situation of the holder of a feu dal estate cannot be fairly compared with that of the eldest son under a modern English *strict settlement.* The distinction between rights of inheritance to real and personal property has practically disappeared from the family law of this and nearly all other Western nations. The English law is exceptional in that respect, though in this country, as in England, real es tate descends directly to the heirs, while per sonal property passes to the next of kin or legatees through the administrator or executor. But the rules of intestate succession in this country .are practically the same with respect to both kinds of property. One rule of the Roman law has not generally prevailed, namely, that which excludes from the succession de scendants claiming through female ancestors. The children of a deceased sister by our law have the same rights as the children of a de ceased brother; children of the half blood stand in the same relationship to each other as full brothers and sisters do, even though their common parent be the mother and not the father.
Modern Legislative Modifications.— In the modern family law one comes face to face with reminiscences of the old order at every turn. The father is the natural guardian of his children and during their minority he has control over their persons and of their property, except such property as is held in other hands under a trust. The father may restrain the liberty of the children or administer corporal punishment; but such restraint and chastise ment must not be excessive or cruel. Until quite recently a father had thepower to bind out his sons as apprentices and, though this right has been generally discontinued, the father is still entitled to the earnings of his minor children. Theoretically he is also entitled to the earnings of an unmarried daughter of full age, who is a member of his household and not independently engaged in business nor in a sepa rate lucrative employment. Until restrained by child labor laws of comparatively recent enact ment, the father was empowered to hire out his children of any age, even the tenderest, and collect their earnings, subject only to the inter vention, often ineffective, of the Society for the Prevention of Cruelty to Children, if one existed in the vicinity. The father has no con trol, other than moral or persuasive, over the marital arrangements of his grown children; though the power of the father to disinherit is very apt to be a very strong influence against inviting his displeasure. Solemnizations of marriages (or the issue of licenses to marry) in the cases of minors are generally forbidden by law, unless the parental consent have been given; and such marriages are voidable at the instance of the parent. Marriages without pa rental consent, of children under certain legally defined ages, are nullities. The duty of a father to educate his children has, in general, been taken over by the state; but in most places the parent is under legal compulsion to send his children of school age either to the schools publicly provided or give them some other and equivalent educational advantages. The obli gation to support his minor and dependent chil dren is enforcible against an unduteous parent by criminal process. Formerly the father had an absolute right to the property of a deceased minor child and, where the rule has not been altered by legislation, he still has this right. The statutes of distribution usually apportion the shares of the next of kin and some of them include the father. In any event, the father
would have the first right to administration of the estate of a minor child. The right of the father to the custody of his children is absolute only under normal conditions. Where the family has been disrupted, or the father is not a proper custodian, equity and statutory law intervene to protect the interests and welfare of the child. The latter in some instances is given the right to express its preference between the guardianship of its mother or father. The duty of the child is to obey its parents, and for incorrigible misconduct the father (or mother) may have a child committed to a correctional institution. Parents, under super vision of a competent courtay surrender their N children for adoption. In New Jersey the State Board of Children's Guardians has a general supervisory power over adoptions. The duty to care for indigent, incapacitated and depend ent parents is imposed on children capable of doing so, and is enforcible by summary crim inal process. In some States the duty to sup port is extended through two generations, so that the obligation may be enforced in behalf of grandparents against grandchildren, and vice versa.
The power of a father (or mother) to dis inherit children by will is absolute. The child can be cut off without even the proverbial shill ing. This is not the case in France and other countries where the Roman law has been more closely followed. With us the human law leaves the matter entirely to the regulation of the natural law of affection. But the birth of a child subsequently to the making of a will, and not provided for therein, has the effect of invali dating the same. Where the inheritance has been diverted from the natural heirs by un due influence or fraud, or where the maker of the will lacked testamentary capacity, the rem edy is a contest of the probate of the instru ment. Deathbed legacies and bequests in favor of religious, charitable and other foundations, which divert a family estate from those equi tably entitled, are void. In case of the- father's intestacy the patrimony, exclusive of the widow's share, goes to the children in equal parts, irre spective of sex. Where there are no descend ants the estate ascends, so to speak, passing to the grandfather and, through him, to collateral relatives in accordance with their varying de grees of consanguinity. A decedent's brothers and sisters stand in the second degree, because they would claim through the common ancestor (their father) and not directly from their brother. Nephews and nieces are consanguine to their uncle or aunt in the third degree, and cousins german stand in the fourth degree to ward each other. The lifelong tutelage of women to the father or other males of the family in which they were born, abolished in the later days of the Roman Empire, was re vived in an accentuated form by the barbarian conquerors. There was superadded the theory of the merger of the wife's personality in that of her husband; and many centuries had to elapse before equity and, later on, the statute law delivered women from their condition of legal nonentity — but even the Married Women's Property Acts have left' traces of the former disabilities of wives. When a woman becomes the head of a family in consequence of the death of her husband she succeeds to the powers and, also, the obligations of the pater familias. A few judicial definitions of the term "family* may not be without interest. Under the Homestead and Exemption laws, it has been held that the term "family* includes a house hold composed of parents and children or other relatives, or domestics and servants. But a mere aggregation of persons residing in the same house does not constitute a family; there must be an obligation on the part of the head of the house to support the others, or some of them, and a corresponding state of dependence on the part of those supported. Where a death benefit is payable to the "family,* the word means next of kin or those entitled to inherit in the case of intestacy. It was a principle of the common law that a family, in its collective capacity, could not inherit, and a bequest to a "family* was void for uncertainty. A different rule prevails in equity, and a bequest by a father in trust for the benefit of his children and their families was declared to be in favor of the testator's sons and daughters and the latter's children, so long as they live together as mem bers of their parents' households, or from their tender years are entitled to support. Generally speaking the term "family* in a bequest includes the testator's wife and children; but where the will is made by a wife the husband is not con sidered a member of her family, because he is neither next of kin nor heir to his wife.