Note 6 — Chapter XI · Wills, Quaint and Curious.

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.)