The fourth and last mode of acquisition that we need consider is Inheritance. In respect of the death of their owners all rights are divisible into two classes, being either inheritable or uninheritable. A right is inheritable, if it survives its owner; uninheritable, if it dies with him. This division is to a large extent, though far from completely, coincident with that between proprietary and personal rights. The latter are in almost all cases so intimately connected with the personality of him in whom they are vested, that they are incapable of separate and continued existence. They are not merely divested by death (as are rights of every sort), but are wholly extinguished. In exceptional cases, however, this is not so. Some personal rights are inheritable, just as property is, an instance being the status of hereditary nobility and the political and other privileges accessory thereto.
Proprietary rights, on the other hand, are usually inheritable. In respect of them death is a divestitive, but not an extinctive fact. The exceptions, however, are numerous. A lease may be for the life of the lessee instead of for a fixed term of years. Joint ownership is such that the right of him who dies first is wholly destroyed, the survivor acquiring an exclusive title by the jus accrescendi or right of survivorship. Rights of action for a tort die with the person wronged, except so far as the rule of the common law has been altered by statute. In the great majority of cases, however, death destroys merely the ownership of a proprietary right, and not the right itself.
The rights which a dead man thus leaves behind him vest in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until, his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for.[[450]]
The representative of a dead man, though the property of the deceased is vested in him, is not necessarily the beneficial owner of it. He holds it on behalf of two classes of persons, among whom he himself may or may not be numbered. These are the creditors and the beneficiaries of the estate. Just as many of a man’s rights survive him, so also do many of his liabilities; and these inheritable obligations pass to his representative, and must be satisfied by him. Being, however, merely the representative of another, he is not liable in propria persona, and his responsibility is limited by the amount of the property which he has acquired from the deceased. He possesses a double personality or capacity, and that which is due from him in right of his executorship cannot be recovered from him in his own right.
The beneficiaries, who are entitled to the residue after satisfaction of the creditors, are of two classes: (1) those nominated by the last will of the deceased, and (2) those appointed by the law in default of any such nomination. The succession of the former is testamentary (ex testamento); that of the latter is intestate (ab intestato). As to the latter there is nothing that need here be said, save that the law is chiefly guided by the presumed desires of the dead man, and confers the estate upon his relatives in order of proximity. In default of any known relatives the property of an intestate is claimed by the state itself, and goes as bona vacantia to the Crown.
Testamentary succession, on the other hand, demands further consideration. Although a dead man has no rights, a man while yet alive has the right to determine the disposition after he is dead of the property which he leaves behind him. 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. This power of the dead hand (mortua manus) is so familiar a feature in the law, that we accept it as a matter of course, and have some difficulty in realising what a very singular phenomenon it in reality is.
It is clear that some limitation must be imposed by the law upon this power of the dead over the living, and these restrictions are of three chief kinds:
(1) Limitations of time. It is only during a limited period after his death, that the directions of a testator as to the disposition of his property are held valid. He must so order the destination of his estate that within this period the whole of it shall become vested absolutely in some one or more persons, free from all testamentary conditions and restrictions. Any attempt to retain the property in manu mortua beyond that limit makes the testamentary disposition of it void. In English law the period is determined by a set of elaborate rules which we need not here consider.
(2) Limitations of amount. A second limitation of testamentary power, imposed by most legal systems, though not by our own, is that a testator can deal with a certain proportion of his estate only, the residue being allotted by the law to those to whom he owes a duty of support, namely his wife and children.
(3) Limitations of purpose. The power of testamentary disposition is given to a man that he may use it for the benefit of other men who survive him; and to this end only can it be validly exercised. The dead hand will not be suffered to withdraw property from the uses of the living. No man can validly direct that his lands shall lie waste, or that his money, shall be buried with him, or thrown into the sea.[[451]]