This, however, suggests the “Will in literature,” and in turning over the pages of the work above referred to, the “Lesser Testament,” of the plaintive poet, Francois Villon, who died in 1484, is not without interest.
His gloves and silken hood are bequeathed to a friend in the following verse;
He desired his friends to record of him in his epitaph:
Among the wills in fiction and poetry, collated by Mr. Harris, in his recent work,[69] are those of Olivia, in Twelfth Night; that of Don Quixote; the wills of Dickens, George Eliot, Dumas and other English writers. But it is not the object of this chapter to deal with wills in fiction, since testaments are founded in certainties, as real as life and death themselves. We have always made our wills in pursuance of a natural inclination, associated with the idea of property and intimately connected with the ties that bind us here on earth. As Hazlitt said, a century ago:
“We consign our possessions to our next of kin, as mechanically as we lean our heads on the pillow and go out of the world in the same state of stupid amazement that we came into it.”
And as certain as we are to die, so certainly do we owe it to ourselves and to those who are the objects of our bounty, to provide for the proper disposition of our acquisitions, even as the men and women of antiquity did, before they pressed the pillow for the last time.
The hands that wrote the wills referred to in the foregoing pages have been stilled with the silence of the centuries, e’en as the fingers that wove the figures in your antique rug; the voice that expressed the dying intent of the testator, like the nightingale that sang among the trees—ah, “whither hath it gone again, who knows” can be heard again no more. Like scattered threads from the warp and woof of the lives from which these skeins are taken, each age-scented document marks the close of a human life and the fact that other lives have fallen, like the leaves from trees, but emphasizes the pathos of our lives, since humanity, as one man, with a universal agony still strives and strains “to gain the goal where agonies shall cease to be.” Streams have been wept into the vast ocean of time since the first will and testament was made by dying man.
“A myriad races came and went; this Sphinx hath seen them come and go.”
True, a human life, is but “a drop in ocean’s boundless tide,” but as truly said by Burton:[70]
FOOTNOTES:
[1] 1 Redfield, on Wills, Ch. II., p. 4; 2 Bl. Comm. 499.
[2] Redfield, on Wills, Ch. I., p. 1; Harris, Ancient Wills. Introd. XII.
[3] Judge John F. Philips advised the writer that an opinion was prepared by a member of the federal court and submitted to him for his concurrence when he was on the bench, in a case similar to that referred to in the text, but it was changed when the attention of the writer was called to the existing facts, which the opinion failed to note. It is to be regretted that historians and law writers cannot so amend their works.
[4] Harris, Ancient Wills, p. 12.
[5] Plutarch’s Life of Solon; IV. Kent’s Comm. 503.
[6] Chitty’s note, to 2 B. Comm. 491.
The reason for recognizing, in law, a right of disposition of property by will, is the same as the law governing the descent and distribution, in case of intestacy. If there were no such provision, on the vacancy of the property, on the death of the last owner, an unseemly scramble would result, which would be both undesirable and contrary to a sound public policy. “Title,” or authority to make a will, is thus based upon the social instinct and both wills and intestacy statutes are in furtherance of this purpose. The owner, in case of a testamentary devise and the State, in case of intestacy, as a mediary, accomplish practically the same purpose, in the division of property, the prevention of a vacancy and the failure of the social instinct, which furnishes the foundation for society and order. (See interesting Essay by Professor Bigelow, in III. Essays in Anglo-American Legal History, pp. 776, 778.)
[7] Genesis, Ch. XV.
[8] Genesis, 48 and 49 Chapters.
[9] Harris, Ancient Wills, p. 12.
[10] I. Reeve’s History English Law, 313; II. Pollock and Maitland’s History English Law, p. 314.
[11] Harris, Ancient Wills, p. 13.
[12] Harris, Ancient Wills, p. 14.
[13] Harris, Ancient Wills, pp. 15, 16.
[14] Harris, Ancient Wills, p. 16.
[15] 2 Bl. Comm. 491.
[16] 32 & 34 Henry VIII.
[17] I. Redfield, on Wills, sec. 4, p. 2; II. Pollock and Maitland’s History English Law, p. 315; IV. Reeve’s History English Law, 510, 511.
[18] II. Pollock and Maitland’s History English Law, pp. 316, 317.
[19] II. Pollock and Maitland’s History English Law, p. 322.
[20] Ante idem., p. 323.
[21] II. Pollock and Maitland’s History English Law, pp. 325, 326.
The statute of wills ordained that all persons having manors, lands, tenements or hereditaments could give and dispose of them, as well by last will, or testament in writing, as by any act executed in their lifetime. (IV. Reeve’s History English Law, p. 374.)
[22] II. Pollock and Maitland’s History English Law, p. 326.
[23] II. Pollock and Maitland’s History English Law, p. 327.
[24] Ante idem.; Beame’s Glanville, p. 118.
[25] I. Reeve’s History English Law, p. 313.
[26] I. Reeve’s History English Law, p. 313.
[27] I. Reeve’s History English Law, p. 314.
[28] III. Reeve’s History English Law, 215.
[29] III. Reeve’s History English Law, 125.
[30] IV. Reeve’s History English Law, 123, 124.
[31] II. Pollock and Maitland’s History English Law, p. 335.
[32] Nicholas’ “Testamenta Vetusta.”
[33] II. Pollock and Maitland’s History English Law, pp. 334, 335.
[34] II. Pollock and Maitland’s History English Law, p. 337.
[35] Harris, Ancient Wills, p. 22.
[36] Maine, Ancient Law, ch. 7, p. 217; III. Essays in Anglo-American Legal History, pp. 780, 781.
[37] IV. Reeve’s History English Law, p. 115.
[38] IV. Reeve’s History English Law, 117.
[39] V. Reeve’s History English Law, pp. 81, 82.
[40] V. Reeve’s History English Law, p. 82.
[41] Harris, Ancient Wills, p. 25.
[42] King Richard II., Act II., Scene I.
[43] Harris, Ancient Wills, p. 25.
[44] Harris, Ancient Wills, p. 29.
[45] Harris, Ancient Wills, p. 39.
[46] Published by Little, Brown & Co., 1911.
[47] Harris, Ancient Wills, p. 87.
[48] Harris, Ancient Wills, p. 94.
[49] Ante idem., 101.
[50] Schutt’s Memorabilia Judaica, lib. iv, cap. 18.
[51] Harris, Ancient Wills, p. 105.
[52] Ante idem., p. 105.
[53] Ante idem., p. 107.
[54] Ante idem., p. 111.
[55] Ante idem. p. 123.
[56] Ante idem. p. 139.
[57] For collection of the many beautiful prayers in the plays, see the interesting book by Mary A. Wadsworth, “Shakespeare and Prayer,” by The Welch Publishing Co., Chicago.
[58] White’s “Law in Shakespeare,” p. 5.
[59] Harris, Ancient Wills, pp. 305, 309.
[60] Harris, Ancient Wills, p. 369.
[61] Harris, Ancient Wills, p. 407.
[62] Harris, Ancient Wills, p. 427.
[63] Harris, Ancient Wills, p. 439.
[64] Dixon’s “Life of Penn”; Stoughton’s “William Penn”; Harris, Ancient Wills, p. 291.
The will of Penn, and other of the earlier patriots of the United States who drew their own wills, in such manner as to cause protracted litigation, suggests the old poem, tuned to the toast of a century ago, “The lawyer’s best friend—the man who makes his own will,” inscribed to “The jolly testator who makes his own will.”
For reproduction of this quaint poem in full, see, Harris, Ancient Wills, p. 209.
[65] Harris, Ancient Wills, p. 67.
[66] Harris, Ancient Wills, p. 67.
[67] Ante idem. 68.
[68] Harris, Ancient Wills, p. 64.
[69] Harris, Ancient Wills, pp. 49, 62.
This bequest of Francois Villon, may have suggested to Mr. Williston Fish of Chicago, the “Insane Man’s Will,” published in Harper’s Weekly, in 1898, wherein he makes an imaginary will that has become a classic in English literature, among the bequests being “all good little words of praise and encouragement,” to good fathers and mothers, in trust for their children; to children, subject to the rights of lovers, he devises, the flowers, the banks of brooks, the blossoms of the woods, the golden sands and waters of the brooks, the white clouds floating high over the giant trees and the Milky Way, to wonder at, at night; to lovers, he devises the imaginary world, with the stars in the sky, the red roses by the wall, the sweet strains of music and all else by which they may figure to each other the lastingness and beauty of their love. To those no longer children or lovers, he bequeaths the pleasures of sweet memories, the poems of Burns and Shakespeare and other poets, and to those with snowy crowns he leaves the happiness of old age, with the love and gratitude of their children, until they fall asleep.
[70] “The Kasidah.”