Introduction

1 INTRODUCTION SECTION A. THE POWER TO TRANSMIT PROPERTY AT DEATH: JUSTIFICATIONS AND LIMITATIONS 1. The Right to Inherit and the Right to Convey THOMAS JEFFERSON, 7 JEFFERSON’S WORKS 454 (Monticello ed. 1904): “The earth belongs in usufruct to the living; the dead have neither powers nor rights over it. The portion occupied by any individual ceases to be his when he himself ceases to be, and reverts to society.” (Letter to James Madison, dated Sept. 6, 1789.) 2 William Blackstone, Commentaries *10-13 The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive, at first view, that it has nature on its side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil right.... Itisprobable that [the right of inheritance arose]...fromaplainer and more simple principle. A man’s children or nearest relations are usually about him on his death-bed, and are the earliest witnesses of his decease. They become, therefore, generally the next immediate occupants, till at length, in process of time, this frequent usage ripened into general law. And therefore, also, in the earliest ages, on failure of children, a man’s servants, 1 2 1. Introduction born under his roof, were allowed to be his heirs; being immediately on the spot when he died. For we find the old patriarch Abraham expressly declaring that “since God had given him no seed, his steward Eliezer, one born in his house, was his heir.”1 While property continued only for life, testaments were useless and unknown: and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will; till at length it was found, that so strict a rule of inheritance made heirs disobedient and headstrong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigencies of their families required. This introduced pretty generally the right of disposing of one’s property, or a part of it, by testament; that is, by written or oral instructions properly wit- nessed and authenticated, according to the pleasure of the deceased, which we, therefore, emphatically style his will. This was established in some countries much later than in others. With us in England, till modern times, a man could only dispose of one-third of his movables from his wife and children; and in general, no will was permitted of lands till the reign of Henry VIII; and then only of a certain portion: for it was not till after the Restoration that the power of devising real property became so universal as at present. Wills, therefore, and testaments, rights of inheritance and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and req- uisites to make a testament completely valid; neither does anything vary more than the right of inheritance under different national establishments. John Locke, Two Treatises of Government Book 1, Ch. 9, §88 (Peter Laslett ed., 1988) It might reasonably be asked here, how come Children by this right of possess- ing, before any other, the properties of their Parents upon their Decease. For it being Personally the Parents, when they dye, without actually Transferring their Right to another, why does it not return again to the common stock of Mankind? ’Twill perhaps be answered, that common consent hath disposed of it, to the Chil- dren. Common Practice, we see indeed does so dispose of it but we cannot say, that it is the common consent of Mankind; for that hath never been asked, nor actually given: and if common tacit Consent hath establish’d it, it would make but a positive and not Natural Right of Children to Inherit the Goods of their Par- ents: But where the Practice is Universal, ’tis reasonable to think the Cause is Natural. The ground then, I think, to be this. The first and strongest desire God 1. Genesis 15:3. [The words put in quotation marks are Blackstone’s paraphrase of two verses of the Bible, which no one has yet translated from the original Hebrew to everyone’s satisfaction. Blackstone’s statement that servants took as heirs in the absence of children has been disputed by many scholars. “Israel does not know a general rule like this for regulating the inheritance.” Gerhard Von Rad, Genesis 178 (John H. Marks trans., 1961). Abraham’s declaration was never put to the test for thereafter, when Abraham was 100 years old and his wife, Sarah, was 90, Sarah gave birth to a son, Isaac. Genesis 17:15. — Eds.] Section A. The Power to Transmit Property at Death 3 Planted in Men, and wrought into the very Principles of their Nature being that of Self-preservation, that is the Foundation of a right to the Creatures, for the particular support and use of each individual Person himself. But next to this, God Planted in Men a strong desire also of propagating their Kind, and continu- ing themselves in their Posterity, and this gives Children a Title, to share in the Property of their Parents, and a Right to Inherit their Possessions. Men are not Pro- prietors of what they have meerly for themselves, their Children have a Title to part of it, and have their Kind of Right joyn’d with their Parents, in the Possession which comes to be wholly theirs, when death having put an end to their Parents use of it, hath taken them from their Possessions, and this we call Inheritance. Until the 1980s, the views of Jefferson and Blackstone prevailed over those of Locke. It was generally accepted that the right to transmit or inherit property at death was neither a natural right nor was it constitutionally protected. Thus in Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942), the Supreme Court said: Rights of succession to property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Con- stitution forbids the legislature of a state to limit, condition, or even abolish the power of tes- tamentary disposition over property within its jurisdiction. But Hodel v. Irving, decided in the 1980s when the Court revived its interest in protecting private property through the Just Compensation Clause, changed all that. Hodel v. Irving Supreme Court of the United States, 1987 481 U.S. 704 O’CONNOR, J. The question presented is whether the original version of the “escheat” provision of the Indian Land Consolidation Act of 1983, Pub. L. 97-459, Tit. II, 96 Stat. 2519, effected a “taking” of appellees’ decedents’ property without just compensation. I Towards the end of the 19th century, Congress enacted a series of land Acts which divided the communal reservations of Indian tribes into individual allotments for Indians and unallotted lands for non-Indian settlement. This legisla- tion seems to have been in part animated by a desire to force Indians to abandon their nomadic ways in order to “speed the Indians’ assimilation into American society,” Solem v. Bartlett, 465 U.S. 463, 466 (1984), and in part a result of pressure to free new lands for further white settlement. Ibid.... [In1889, by an Act of Congress] each male Sioux head of household took 320 acres of land and 4 1. Introduction most other individuals 160 acres. In order to protect the allottees from the improvident disposition of their lands to white settlers, the Sioux allotment stat- ute provided that the allotted lands were to be held in trust by the United States. Until 1910 the lands of deceased allottees passed to their heirs “according to the laws of the State or Territory” where the land was located, and after 1910, allottees were permitted to dispose of their interests by will in accordance with regulations promulgated by the Secretary of the Interior. Those regulations generally served to protect Indian ownership of the allotted lands. The policy of allotment of Indian lands quickly proved disastrous for the Indians. Cash generated by land sales to whites was quickly dissipated and the Indians, rather than farm the land themselves, evolved into petty land- lords, leasing their allotted lands to white ranchers and farmers and living off the meager rentals.... Thefailure of the allotment program became even clearer as successive generations came to hold the allotted lands. Thus 40-, 80-, and 160-acre parcels became splintered into multiple undivided interests in land, with some parcels having hun- dreds and many parcels having dozens of owners. Because the land was held in trust and often could not be alienated or Justice Sandra Day O’Connor partitioned the fractionation problem grew and grew over time. A 1928 report commissioned by the Congress found the situation administratively unworkable and economically wasteful. L. Meriam, Institute for Government Research, The Problem of Indian Administration 40-41.... Indiscussing the Indian Reorganization Act of 1934, Representative Howard said: It is in the case of the inherited allotments, however, that the administrative costs become incredible.... Onallotted reservations, numerous cases exist where the shares of each individual heir from lease money may be 1 cent a month.

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