Testators should not, from the snug security of the grave, utter a
perpetual threat of disinheritance or any other uncomfortable fate to
deter an American citizen, even one of his own legatees, from applying
to the courts of his country for redress of any wrong from which he
might consider himself as suffering. The courts of law ought to be open
to any one conceiving himself a victim of injustice, and it should be
unlawful to abridge the right of complaint by making its exercise more
hazardous than it naturally is. Doubtless the contesting of wills is
a nuisance, generally speaking, the contestant conspicuously devoid of
moral worth and the verdict singularly unrighteous; but as long as
some testators really _are_ daft, or subject to interested suasion, or
wantonly sinful, they should be denied the power to stifle dissent by
fining the luckless dissenter. The dead have too much to say in this
world at the best, and it is monstrous and intolerable tyranny for them
to stand at the door of the Temple of Justice to drive away the suitors
that themselves have made.
Obedience to the commands of the dead should be conditional upon their
good behavior, and it is not good behavior to set up a censure of
actions at law among the living. If our courts are not competent to
say what actions are proper to be brought and what are unfit to be
entertained let us improve them until they are competent, or abolish
them altogether and resort to the mild and humane arbitrament of the
dice. But while courts have the civility to exist they should refuse
to surrender any part of their duties and responsibilities to such
exceedingly private persons as those under six feet of earth, or sealed
up in habitations of hewn stone. Persons no longer affectible by human
events should be denied a voice in determining the character and trend
of them. Respect for the wishes of the dead is a tender and beautiful
sentiment, certainly. Unfortunately, it can not be ascertained that
they have any wishes. What commonly go by that name are wishes once
entertained by living persons who are now dead, and who in dying
renounced them, along with everything else. Like those who entertained
them, the wishes are no longer in existence. "The wishes of the dead,"
therefore, are not wishes, and are not of the dead. Why they should
have anything more than a sentimental influence upon those still in the
flesh, and be a factor to be reckoned with in the practical affairs
of the super-graminous world, is a question to which the merely human
understanding can find no answer, and it must be referred to the
lawyers. When "from the tombs a doleful sound" is vented, and "thine ear"
is invited to "attend the cry," an intelligent forethought will suggest
that you inquire if it is anything about property. If so pass on--that
is no sacred spot.