Will (law)

“ While a will is to be in writing, [51] the law insists upon certain solemnities in its execution to properly evidence the testator’s act and intention, without which the will is absolutely void; and courts very strictly construe these requirements, because they are remedial, in order to guard against very grave perils and mischief. ”

“ A will, from its nature, is the declaration of a man’s mind as to the proper disposition of his property after death. This declaration, as any other fact, is established by evidence, oral or written. It is not the essence of a will that it shall be in writing; the essence is the declared purpose or intention, and this is established, as any other fact in law, by witnesses, or by the written declaration of the testator. In Bacon’s Abridgement, a will, therefore, is defined to be, “A declaration of the mind, either by word or writing, in disposing of an estate ”

“ The conception of a Will or Testament cannot be considered by itself. It is a member, and not the first, of a series of conceptions. In itself a Will is simply the instrument by which the intention of the testator is declared. It must be clear, I think, that before such an instrument takes its turn for discussion, there are several preliminary points to be examined—as, for example, what is it, what sort of right or interest, which passes from a dead man on his decease? ”

“ His last will, duly declared in the document which we significantly call by that name, is held inviolable by the law. For half a century and more, the rights and responsibilities of living men may thus be determined by an instrument which was of no effect until the author of it was in his grave and had no longer any concern with the world or its affairs. ”

“ But suppose a person, to whom property is given on the terms of his incurring an equitable obligation in respect to it, is unwilling to incur such obligation, shall it be imposed upon him against his will? ”

“ The lawyer will tell you to have your will written and to have it well written; he will tell you that human nature is strongly marked in wills; he will tell you that his profession knows no more complicated and perplexing a document to prepare than a will; he will tell you that wills are frequently destroyed by unauthorized hands; he will tell you that when a provision is made by will which gives less than that which is allowed by law, that that provision will be attacked ”

“ But we suppose a law under which both subsist, which regulates the mode of their existence, and by the efficiency of which the order of their succession is determined. So likewise, in the spiritual world, we entertain the firmest conviction that our moral Will is connected with certain consequences, though we cannot understand how mere Will can of itself produce such consequences. We here again conceive of a law under which our Will, and the Will of all finite beings, exists, in virtue of which it is followed by certain results, and out of which all our relations with other beings arise. ”

“ For the will to rule the will, it would need at once to command and to obey, to be bond and free, dependent and independent. To be its own rule were for it to be without rule. Conscience claims to rule my will in virtue of a law which cannot be the expression of my will, and which cannot be anything else than the expression of another will ”

“ The view of a Will which regards it as conferring the power of diverting property from the Family, or of distributing it in such uneven proportions as the fancy or good sense of the Testator may dictate, is not older than that later portion of the Middle Ages in which Feudalism had completely consolidated itself. When modern jurisprudence first shows itself in the rough, Wills are rarely allowed to dispose with absolute freedom of a dead man's assets. ”

“ States last only so long as there is a ruling will and this ruling will is looked upon as tantamount to the own will. The lord's will is - law. What do your laws amount to if no one obeys them? What your orders, if nobody lets himself be ordered? The state cannot forbear the claim to determine the individual's will, to speculate and count on this. For the state it is indispensable that nobody have an own will ”

“ A ruler’s will, as lawgiver, is first and principally that his laws be obeyed, and not at all that the penalty be executed on any, but only on supposition that they will not obey his laws. But a ruler’s will, as judge, supposeth the law already either kept or broken ”

“ The law invests every man with a very absolute power in respect to his property, authorizing him to make any disposition of it whatever, and carrying faithfully into effect, after his death, any wish that he may have expressed in regard to it, as his deliberate and final intention. It insists, however, that there should be evidence that the wish, so expressed, is really a deliberate and final act. It is not enough that the man should say in words what his wishes are. The will must be in writing, and it must be signed ”

“ For since the law declares the expression of the will to possess something to be the ground of all property, and since both parties express that will at the same time, both parties have an equal right before the law. ”

“ In public transactions nothing is more authoritative than law; in private affairs the most valid of all deeds is a will. Of the laws, some he abolished without giving the least notice; others he gave notice of bills to abolish. Wills he annulled; tho they have been at all times held sacred even in the case of the very meanest of the citizens. ”

“ The law we know, then, must have all the meaning and the natural authority of a law of our own enactment, and so must actually have the sanction of our will. Will, I say, cannot help sanctioning knowledge, for knowledge is always true to, because conditioned by, the natural action of the knower. But no such message of freedom, or say of human opportunity in natural necessity, is commonly received by men at large from the evidences of law in nature. ”

“ Since man has free will, a law has been defined for his guidance by the Deity, not without answering a good purpose. For if man did not possess the power to will and not to will, why should a law be established? ”

“ Such lawyers argue that in will cases 'the true question is not what the testator intended to do, but what is the meaning of the words of the will,' and that the balance of advantages is in favour of a strict adherence to the construction of the sentence and the technicalities of the law, even though in particular cases it may lead to grave injustice. ”

“ SUFFOLK Faith, I have been a truant in the law,
And never yet could frame my will to it;
And therefore frame the law unto my will. ”

“ The acts of the free-will are pre-determined by a cause out of the will, according to the same law of cause and effect which controls the changes in the physical world. We have no notion of power but uniformity of antecedent and consequent. The notion of a power in the will to act freely is therefore nothing more than an inherent capacity of being acted upon, agreeably to its nature, and according to a fixed law, by the motives which are present in the understanding. ”

“ If, then, it is asked, what interpretation the Court put upon the words 'all the rest,' in connexion with 'lands and tenements?' the answer is, that no definite meaning can, in this will, be annexed to them. It is our duty to give effect to all the words of a will, if, by the rules of law, it can be done. And where words occur in a will, their plain and ordinary sense is to be attached to them, unless the testator manifestly applies them in some other sense. ”

“ If your father had died intestate, you would have instantly become, in contemplation of law, the owner of all his property. His will—his legal will—deprives you of a small part of it for the benefit of others. ”

“ The conception of a will as a means of disinheriting children and devolving an estate in accordance with the excessive partiality, fleeting caprice, or malignant temper of the testator, is a conception of our modern times, and was not familiar to the jurisprudence of primitive antiquity. In fact, ancient law regarded a will as a means of perpetuating the family in a succeeding generation by nominating a new chief on whom the headship was to be devolved. ”

“ The statute law of almost every civilized state at the present time requires a will of real and personal property to be in writing, with the exceptions noticed in the first section of this chapter. A will, wholly written by the testator, signed and dated by him, is called a holographic will, and is, in some States, valid, without the usual formalities required to prove wills. ”

“ When all the actions of the Will, or voluntary power, are in perfect harmony with the moral law, and all the propensities are held in full subjection to that law, the creature stands perfect and complete in the discharge of his duty to God and Man. ”

“ And whether this is so or not, it does seem to be the case that every law, which is the law of any community, is, in a certain sense, dependent upon the human will. This is true in the sense that, in the case of every law whatever, there always are some men, who, by performing certain acts of will, could make it cease to be the law ”

“ Hence, when we undertake to define law in general, or to point out the common property by which laws are distinguished from other things, we must necessarily fail. We may frame a definition in words, as others have done ”

“ For,—and this is the substance of my belief,—my will, absolutely by itself, and without the intervention of any instrument that might weaken its expression, shall act in a perfectly congenial sphere,—reason upon reason, spirit upon spirit;—in a sphere to which nevertheless it does not give the law of life, activity, and progress, but which has that law in itself;—therefore, upon self-active reason. But self-active reason is will. The law of the super-sensual world must, therefore, be a Will:—A Will which operates purely as will; ”

“ For instance, the law commands that the other person shall treat me as a rational being. He does not do so; and the law now absolves me from all obligation to treat him as a rational being. But by that very absolving it makes itself valid. For the law, in saying that it depends now altogether upon my free-will how I desire to treat the other, or that I have a compulsory right against him, says, virtually, that the other person can not prevent my compulsion; ”

“ Moral Laws are set as a curb and restraint to these exorbitant Desires, which they cannot be but by Rewards and Punishments, that will over-balance the satisfaction any one shall propose to himself in the breach of the Law. ”

“ The moral obligation of the will, which is, however, an absolute and unconditional law, takes unperceived the character of a simple contract, which only binds each of the contracting parties when the other fulfils its engagement. ”

“ The English courts are more strict in requiring a substantial compliance with the statute than our courts are. In the American cases, the intention is looked upon as the most material and controlling element: as where a testator asked for his will on his sick bed, and was handed an old letter, which he destroyed, supposing it to be his will, it was held to be a good revocation. ”

“ Such a possession is only possible in a state of civil society. In civil society, a declaration by word or act that an external thing is mine and making it an object of the exercise of my will is "a juridical act." ”

“ As I have deprived the will of every impulse which could arise to it from obedience to any law, there remains nothing but the universal conformity of its actions to law in general, which alone is to serve the will as a principle, i.e., I am never to act otherwise than so that I could also will that my maxim should become a universal law. ”

“ In so doing, however, she does not dispense from the Natural Law that vows, contracts, etc., should be fulfilled, but only declares in the name of God that the subject-matter of an obligation contracted by act of man’s will has become unsuitable for vow, contract, etc., and hence is no longer comprehended under the law. ”

“ The expediency of such a regulation is also highly questionable. Every candidate is required to come to our doors "of his own free will and accord," and surely we should desire to keep none among us after that free will is no longer felt. ”

“ The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. ”

“ If physical power be the fountain of law, then law and force are synonymous terms. Or, perhaps, rather, law would be the result of a combination of will and force; of will, united with a physical power sufficient to compel obedience to it, but not necessarily having any moral character whatever. ”

“ I do not, therefore, need any far-reaching penetration to discern what I have to do in order that my will may be morally good. Inexperienced in the course of the world, incapable of being prepared for all its contingencies, I only ask myself: Canst thou also will that thy maxim should be a universal law? ”

“ He that will not work according to his faculty, let him perish according to his necessity: there is no law juster than that. ”

“ But how shall the condition, the true subjection of the other to the law, be given?
Not through signs of repentance, promises of future better behavior, offers of damages, etc.; for there is no ground to believe his sincerity. It is quite as possible that he has been forced by his present weakness into this repentance, and is only awaiting a better opportunity to renew the attack. This uncertainty does not warrant the other in laying down his arms and thus again exposing all his safety. He will, therefore, continue to exercise his compulsion; ”