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SECTION I. THE LIVING AND THE DEAD: WHOSE MONEY IS IT?
Has a dead man any use for money? Is it possible for a dead man to have any money? What world does a dead man belong to? Tother world. What world does money belong to? This world. How can money be a corpses? Can a corpse own it, want it, spend it, claim it, miss it? Gaffer Hexam, in Charles Dickens, Our Mutual Friend (1865) Money may be of no value to a corpse, but living people who have accumulated money often have strong opinions about what should happen to their money after they die. Trusts and Estates lawyers play an important role in advising and assisting clients who want to arrange for disposition of their assets after death. Before we consider the lawyers role in the wealth transmission process, lets consider Gaffer Hexams questions more seriously. Why should we allow people who have passed to tother world to control wealth in this world? And how much control should we permit people in tother world to exercise? Consider the following case:

Shapira v. Union National Bank

Ohio Common Pleas Court, Probate Division, 1974. 39 Ohio Misc. 28, 315 N.E.2d 825.

t HENDERSON, J.: This is an action for a declaratory judgment and the construction of the will of David Shapira, M.D., who died April 13, 1973, a resident of this county. By agreement of the parties, the case has been submitted upon the pleadings and the exhibit. The portions of the will in controversy are as follows:
Item VIII. All the rest, residue and remainder of my estate, real and personal, of every kind and description and wheresoever situated, which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath to my three (3) beloved children, to wit: Ruth Shapira Aharoni, of Tel Aviv, Israel, or wherever she may reside at the time of my death; to my son Daniel Jacob Shapira, and to

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my son Mark Benjamin Simon Shapira in equal shares, with the following qualifications: * * * (b) My son Daniel Jacob Shapira should receive his share of the bequest only, if he is married at the time of my death to a Jewish girl whose both parents were Jewish. In the event that at the time of my death he is not married to a Jewish girl whose both parents were Jewish, then his share of this bequest should be kept by my executor for a period of not longer than seven (7) years and if my said son Daniel Jacob gets married within the seven year period to a Jewish girl whose both parents were Jewish, my executor is hereby instructed to turn over his share of my bequest to him. In the event, however, that my said son Daniel Jacob is unmarried within the seven (7) years after my death to a Jewish girl whose both parents were Jewish, or if he is married to a non Jewish girl, then his share of my estate, as provided in item 8 above should go to The State of Israel, absolutely.

The provision for the testators other son Mark, is conditioned substantially similarly. Daniel Jacob Shapira, the plaintiff, alleges that the condition upon his inheritance is unconstitutional, contrary to public policy and unenforceable because of its unreasonableness, and that he should be given his bequest free of the restriction. Daniel is 21 years of age, unmarried and a student at Youngstown State University. * * * CONSTITUTIONALITY Plaintiffs argument that the condition in question violates constitutional safeguards is based upon the premise that the right to marry is protected by the Fourteenth Amendment to the Constitution of the United States. Meyer v. Nebraska (1923), 262 U.S. 390; Skinner v. Oklahoma (1942), 316 U.S. 535; Loving v. Virginia (1967), 388 U.S. 1. In Meyer v. Nebraska, holding unconstitutional a state statute prohibiting the teaching of languages other than English, the court stated that the Fourteenth Amendment denotes the right to marry among other basic rights. In Skinner v. Oklahoma, holding unconstitutional a state statute providing for the sterilization of certain habitual criminals, the court stated that marriage and procreation are fundamental to the very existence and survival of the race. In Loving v. Virginia, the court held unconstitutional as violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment an antimiscegenation statute under which a black person and a white person were convicted for marrying. In its opinion the United States Supreme Court made the following statements at page 12:
There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. * * * The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

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Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. * * * The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

From the foregoing, it appears clear, as plaintiff contends, that the right to marry is constitutionally protected from restrictive state legislative action. Plaintiff submits, then, that under the doctrine of Shelley v. Kraemer (1948), 334 U.S. 1, the constitutional protection of the Fourteenth Amendment is extended from direct state legislative action to the enforcement by state judicial proceedings of private provisions restricting the right to marry. Plaintiff contends that a judgment of this court upholding the condition restricting marriage would, under Shelley v. Kraemer, constitute state action prohibited by the Fourteenth Amendment as much as a state statute. In Shelley v. Kraemer the United States Supreme Court held that the action of the states to which the Fourteenth Amendment has reference includes action of state courts and state judicial officials. Prior to this decision the court had invalidated city ordinances which denied blacks the right to live in white neighborhoods. In Shelley v. Kraemer owners of neighboring properties sought to enjoin blacks from occupying properties which they had bought, but which were subjected to privately executed restrictions against use or occupation by any persons except those of the Caucasian race. Chief Justice Vinson noted, in the course of his opinion at page 13: These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. In the case at bar, this court is not being asked to enforce any restriction upon Daniel Jacob Shapiras constitutional right to marry. Rather, this court is being asked to enforce the testators restriction upon his sons inheritance. If the facts and circumstances of this case were such that the aid of this court were sought to enjoin Daniels marrying a nonJewish girl, then the doctrine of Shelley v. Kraemer would be applicable, but not, it is believed, upon the facts as they are. Counsel for plaintiff asserts, however, that his position with respect to the applicability of Shelley v. Kraemer to this case is fortified by two later decisions of the United States Supreme Court: Evans v. Newton (1966), 382 U.S. 296 and Pennsylvania v. Board of Directors of City Trusts of the City of Philadelphia (1957), 353 U.S. 230. Evans v. Newton involved land willed in trust to the mayor and city council of Macon, Georgia, as a park for white people only, and to be controlled by a white board of managers. To avoid the citys having to enforce racial segregation in the park, the city officials resigned as trustees and private individuals were installed. The court held that such successor trustees, even though private individuals, became agencies or instrumentalities of the state and subject to the Fourteenth Amendment by reason of

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their exercising powers or carrying on functions governmental in nature. The following comment of Justice Douglas seems revealing: If a testator wanted to leave a school or center for the use of one race only and in no way implicated the State in the supervision, control, or management of that facility, we assume arguendo that no constitutional difficulty would be encountered. 382 U.S. 300. The case of Pennsylvania v. Board, as the full title, above, suggests, is a case in which money was left by will to the city of Philadelphia in trust for a college to admit poor white male orphans. The court held that the board which operated the college was an agency of the state of Pennsylvania, and that, therefore, its refusal to admit the plaintiffs because they were negroes was discrimination by the state forbidden by the Fourteenth Amendment. So, in neither Evans v. Newton nor Pennsylvania v. Board was the doctrine of the earlier Shelley v. Kraemer applied or extended. Both of them involved restrictive actions by state governing agencies, in one case with respect to a park, in the other case with respect to a college. Although both the park and the college were founded upon testamentary gifts, the state action struck down by the court was not the judicial completion of the gifts, but rather the subsequent enforcement of the racial restrictions by the public management. Basically, the right to receive property by will is a creature of the law, and is not a natural right or one guaranteed or protected by either the Ohio or the United States constitution. Patton v. Patton (1883), 39 Ohio St. 590; Hagerty v. State (1897), 55 Ohio St. 613; State, ex rel. Taylor v. Guilbert (1904), 70 Ohio St. 229; Magoun v. Illinois Trust and Savings Bank (1898), 170 U.S. 283; 55 Ohio Jurisprudence 2d 535, Wills, Section 64; 57 American Jurisprudence 138, Wills, Section 153. It is a fundamental rule of law in Ohio that a testator may legally entirely disinherit his childrenTTTT This would seem to demonstrate that, from a constitutional standpoint, a testator may restrict a childs inheritance. The court concludes, therefore, that the upholding and enforcement of the provisions of Dr. Shapiras will conditioning the bequests to his sons upon their marrying Jewish girls does not offend the Constitution of Ohio or of the United StatesTTTT PUBLIC POLICY The condition that Daniels share should be turned over to him if he should marry a Jewish girl whose both parents were Jewish constitutes a partial restraint upon marriage. If the condition were that the beneficiary not marry anyone, the restraint would be general or total, and, at least in the case of a first marriage, would be held to be contrary to public policy and void. A partial restraint of marriage which imposes only reasonable restrictions is valid, and not contrary to public policy: 5 BoweParker: Page on Wills 460, Section 44.25; 56 Ohio Jurisprudence 2d 243, Wills, Section 729; 52 American Jurisprudence 2d 1023, Marriage, Section 181. The great weight of authority in the United States is that gifts conditioned upon the beneficiarys marrying within a particular religious class or faith are reasonable. 5 BoweParker; Page on Wills 461, Section 44.25TTTT

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Plaintiff contends, however, that in Ohio a condition such as the one in this case is void as against the public policy of this state. In Ohio, as elsewhere, a testator may not attach a condition to a gift which is in violation of public policy. 56 Ohio Jurisprudence 2d 238, Wills, Section 722; Neidler v. Donaldson (P.C. Seneca 1967), 9 Ohio Misc. 208, 224 N.E. 2d 404, 38 O. O. 2d 360. There can be no question about the soundness of plaintiffs position that the public policy of Ohio favors freedom of religion and that it is guaranteed by Section 7, Article I of the Ohio Constitution, providing that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. Plaintiffs position that the free choice of religious practice cannot be circumscribed or controlled by contract is substantiated by Hackett v. Hackett (C.A. Lucas 1958), 78 Ohio Law Abs. 485, 150 N.E. 431. This case held that a covenant in a separation agreement, incorporated in a divorce decree, that the mother would rear a daughter in the Roman Catholic faith was unenforceable. However, the controversial condition in the case at bar is a partial restraint upon marriage and not a covenant to restrain the freedom of religious practice; and, of course, this court is not being asked to hold the plaintiff in contempt for failing to marry a Jewish girl of Jewish parentage. Counsel contends that if Dr. David Shapira, during his life, had tried to impose upon his son those restrictions set out in his Will he would have violated the public policy of Ohio as shown in Hackett v. Hackett. The public policy is equally violated by the restrictions Dr. Shapira has placed on his son by his Will. This would be true, by analogy, if Dr. Shapira, in his lifetime, had tried to force his son to marry a Jewish girl as the condition of a completed gift. But it is not true that if Dr. Shapira had agreed to make his son an inter-vivos gift if he married a Jewish girl within seven years, that his son could have forced him to make the gift free of the condition. TTT In England the courts have held that partial restrictions upon marriage to persons not of the Jewish faith, or of Jewish parentage, were not contrary to public policy or invalidTTTT The American case cited by plaintiff is that of Maddox v. Maddox (1854), 52 Va. (11 Grattans) 804. The testator in this case willed a remainder to his niece if she remain a member of the Society of Friends. When the niece arrived at a marriageable age there were but five or six unmarried men of the society in the neighborhood in which she lived. She married a non-member and thus lost her own membership. The court held the condition to be an unreasonable restraint upon marriage and void, and that there being no gift over upon breach of the condition, the condition was in terrorem, and did not avoid the bequest. It can be seen that while the court considered the testamentary condition to be a restraint upon marriage, it was primarily one in restraint of religious faith. The court said that with the small number of eligible bachelors in the area the condition would have operated as a virtual prohibition of the nieces marrying, and that she could not be expected to go abroad in search of a helpmate or to be subjected to the chance of being sought after by a stranger. The court

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distinguished the facts of its case from those in England upholding conditions upon marriage by observing that England was already overstocked with inhabitants while this country had an unbounded extent of territory, a large portion of which is yet unsettled, and in which increase of population is one of the main elements of national prosperity. TTT In arguing for the applicability of the Maddox v. Maddox test of reasonableness to the case at bar, counsel for the plaintiff asserts that the number of eligible Jewish females in this county would be an extremely small minority of the total population especially as compared with the comparatively much greater number in New York, whence have come many of the cases comprising the weight of authority upholding the validity of such clauses. There are no census figures in evidence. While this court could probably take judicial notice of the fact that the Jewish community is a minor, though important segment of our total local population, nevertheless the court is by no means justified in judicial knowledge that there is an insufficient number of eligible young ladies of Jewish parentage in this area from which Daniel would have a reasonable latitude of choice. And of course, Daniel is not at all confined in his choice to residents of this county, which is a very different circumstance in this day of travel by plane and freeway and communication by telephone, from the horse and buggy days of the 1854 Maddox v. Maddox decision. Consequently, the decision does not appear to be an appropriate yardstick of reasonableness under modern living conditions. Plaintiffs counsel contends that the Shapira will falls within the principle of Fineman v. Central National Bank (1961), 87 Ohio Law Abs. 236, 175 N.E. 2d 837, 18 O. O. 2d 33, holding that the public policy of Ohio does not countenance a bequest or devise conditioned on the beneficiarys obtaining a separation or divorce from his wife. Counsel argues that the Shapira condition would encourage the beneficiary to marry a qualified girl just to receive the bequest, and then to divorce her afterward. This possibility seems too remote to be a pertinent application of the policy against bequests conditioned upon divorce. Most other authorities agree with Fineman v. Bank that as a general proposition, a testamentary gift effective only on condition that the recipient divorce or separate from his or her spouse is against public policy and invalid. 14 A.L.R. 3d 1222. But no authorities have been found extending the principle to support plaintiffs position. Indeed, in measuring the reasonableness of the condition in question, both the father and the court should be able to assume that the sons motive would be proper. And surely the son should not gain the advantage of the avoidance of the condition by the possibility of his own impropriety. Finally, counsel urges that the Shapira condition tends to pressure Daniel, by the reward of money, to marry within seven years without opportunity for mature reflection, and jeopardizes his college education. It seems to the court, on the contrary, that the seven year time limit would be a most reasonable grace period, and one which would give the son ample opportunity for exhaustive reflection and fulfillment of the condition with-

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out constraint or oppression. Daniel is no more being blackmailed into a marriage by immediate financial gain, as suggested by counsel, than would be the beneficiary of a living gift or conveyance upon consideration of a future marriagean arrangement which has long been sanctioned by the courts of this state. Thompson v. Thompson (1868), 17 Ohio St. 649. In the opinion of this court, the provision made by the testator for the benefit of the State of Israel upon breach or failure of the condition is most significant for two reasons. First, it distinguishes this case from the bare forfeitures in TTT Maddox v. MaddoxTTTT Second, and of greater importance, it demonstrates the depth of the testators conviction. His purpose was not merely a negative one designed to punish his son for not carrying out his wishes. His unmistakable testamentary plan was that his possessions be used to encourage the preservation of the Jewish faith and blood, hopefully through his sons, but, if not, then through the State of Israel. Whether this judgment was wise is not for this court to determine. But it is the duty of this court to honor the testators intention within the limitations of law and of public policy. The prerogative granted to a testator by the laws of this state to dispose of his estate according to his conscience is entitled to as much judicial protection and enforcement as the prerogative of a beneficiary to receive an inheritance. It is the conclusion of this court that public policy should not, and does not preclude the fulfillment of Dr. Shapiras purpose, and that in accordance with the weight of authority in this country, the conditions contained in his will are reasonable restrictions upon marriage, and valid. NOTE ON TERMINOLOGY In the Shapira case, the court sometimes refers to David Shapira as the testator. A testator is a person who has written a will. A person who dies with a duly executed will dies testate. A person who dies without a will dies intestate. An intestate decedents property passes to that persons heirs, who are designated by the jurisdictions statute on intestate succession. By contrast, when testators will disposes of property, the persons designated to take that property are not called heirs, but devisees (or sometimes legatees). A clause directing disposition of property is called a devise, a legacy, or a bequest. Historically, the word devise was used to describe a disposition of real property, legacy was used to describe a disposition of money, and bequest was used to describe a disposition of personal property other than money. Today, the terms are often used interchangeably. QUESTIONS 1. Consider two accounts of David Shapiras motives when he included the disputed provision in his will:

CHAPTER ONE

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(a) David was trying to control the significant life decisions of his son Daniel (and his son Mark) by inducing his son to marry a Jewish woman. (b) David was simply expressing his preferences: if Daniel were to commit himself to a Jewish family, David would prefer that Daniel share in Davids estate; if, on the other hand, Daniel did not commit himself to a Jewish family, David would prefer that the State of Israel should share in Davids estate. Do we know which account of Davids motives is the more accurate one? Would the court careand should the court carewhat motivated David when he wrote his will? See Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, 1999 U. Ill. L. Rev. 1273, 1309: [S]ubjective motive is difficult to divine and easy to manufacture through fanciful posthumous imputation. It is difficult enough to infer what a testator intended to do with her property; to infer why she wanted to do it requires the court to engage in potentially limitless speculation. 2. Why should Daniel Shapira have any standing to complain? Couldnt his father have cut him out of the will altogether, leaving his entire estate to the State of Israel? If so, why should Daniel be in a position to complain about his fathers willwhich at least held out the possibility of inheritance in certain circumstances? 3. What limits, if any, would a court place on enforcement of David Shapiras stated intentions? Consider the following will provisions: (a) To my son Daniel, so long as he does not convert to another faith within ten (10) years of my death. (b) To my son Daniel, so long as he divorces his Catholic wife, Mary, within ten (10) years of my death. Would the court have enforced either of those provisions? If not, why not? Suppose David, while alive, had promised Daniel a substantial sum of money if Daniel divorced his wife. Would any public policy have prevented David from keeping his promise? Why shouldnt David be entitled to use in his will the same carrots and sticks as he might have used while he was alive? Inheritance Rights More Generally The court in Shapira emphasized that the right to receive property by will is a creature of the law, and is not a natural right or one guaranteed or protected by either the Ohio or the United States constitution. Indeed, in England, owners of landthen the principal form of propertyhad no right to dispose of that property by will until 1540, when Parliament enacted the Statute of Wills, 32 Hen. VIII, c. 1(1540). Instead, real property passed by descent to the deceased property owners heirgenerally the decedents oldest son, if decedent had one. If decedent had no sons, his

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property would pass to his daughters. Decedent had no choice in the matter (unless he made complex arrangements to avoid the rules of descent). With the enactment of the Statute of Wills, decedent for the first time had direct testamentary control over the disposition of real property. Thus, for AngloAmerican courts and legislatures, both the right to receive property (discussed in Shapira), and the right to dispose of property, are rooted in positive law, subject to legislative adjustment. And, as we shall see, many states have restricted the right of a decedent to disinherit at least one class of family memberdecedents surviving spouse. Suppose, however, a state tried to abolish inheritance altogetherto require that all property passes to the state (or, to use the appropriate terminology, to require that all property escheats to the state). Would such a statute be constitutional? Although no state has seen fit to abolish inheritance, the United States Supreme Court weighed in on the issue in Hodel v. Irving, 481 U.S. 704 (1987). Congress had enacted the Indian Land Consolidation Act, which provided that undivided fractional interests in tracts of land within a reservation would escheat if the interest represented two percent or less of the total acreage in the tract and if the interest earned its owner less than $100 in the year before it was due too escheat. Heirs who, but for the statute, would have succeeded to interests in reservation lands, challenged the statute as an unconstitutional taking. The Supreme Court, in an opinion by Justice OConnor, agreed, writing:
TTT [T]he regulation here amounts to virtually the abrogation of the right to pass on a certain type or propertythe small undivided interestto ones heirs. In one form or another, the right to pass on propertyto ones family in particularhas been part of the Anglo American legal system since feudal timesTTTT Even the United States concedes that total abrogation of the right to pass property is unprecedented and likely unconstitutionalTTTT Since the escheatable interests are not, as the United States argues, necessarily de minimisTTTT a total abrogation of these rights cannot be upheldTTTT In holding that complete abolition of both the descent and devise of a particular class of property may be a taking, we reaffirm the continuing vitality of the long line of cases recognizing the States, and where appropriate, the United States broad authority to adjust the rules governing the descent and devise of property without implicating the guarantees of the Just Compensation ClauseTTTT The difference in this case is the fact that both descent and devise are completely abolishedTTTT

481 U.S. at 716. But why should we be so committed to inheritance rights? In a country that embraces equality of opportunity as a goal, inheritance gives a head start to the children of the wealthy and the powerful. Consider the following:

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Mark L. Ascher, Curtailing Inherited Wealth, 89 Mich. L. Rev. 69, 6976 (1990). One of the most dominant themes in American ideology is equality of opportunity. In our society, ability and willingness to work hard are supposed to make all things possible. But we know there are flaws in our ideology. Differences in native ability unquestionably exist. Similarly, some people seem to have distinctly more than their fair share of good luck. Both types of differences are, however, beyond our control. So we try to convince ourselves that education evens out most differences. Still, we know there are immense differences in the values various parents imbue in their children. And we also know there are vast differences in the educations parents can afford for their children. Here too, however, we feel there is little to be doneTTTT When forced to acknowledge these differences in ability, luck, and educational opportunity, we admit that we do not play on a completely level field. But because each of these differences seems beyond our control, we tend to believe the field is as level as we can make it. It is not. For no particularly good reason, we allow some players, typically those most culturally and educationally advantaged, to inherit huge amounts of wealth, unearned in any sense at all. So long as we continue to tolerate inheritance by healthy, adult children, what we as a nation actually proclaim is, All men are created equal, except the children of the wealthy. * * * About $150 billion pass at death each year. Yet in 1988 the federal wealth transfer taxes raised less than $8 billion [in 2001, the figure is about $29 billioneds.] Obviously, these taxes could raise much more. If, to take the extreme example, we allowed the government to confiscate all property at death, we could almost eliminate the deficit with one stroke of a Presidential pen. This nation, however, rarely has used taxes on the transfer of wealth to raise significant revenue. Our historical hesitancy in this regard strongly suggests that we as a nation are unwilling to abolish inheritance in order to raise revenue. Nonetheless, thinking about using the federal wealth transfer taxes to abolish inheritance may not be entirely futileTTTT My proposal views inheritance as something we should tolerate only when necessarynot something we should always protect. My major premise is that all property owned at death, after payment of debts and administration expenses, should be sold and the proceeds paid to the United States government. [Professor Ascher then outlines exceptions to his general rulegenerally for protection of spouses, minor children, and disabled descendants.] My proposal strikes directly at inheritance by healthy, adult children. And for good reason. We cannot control differences in native ability. Even worse, so long as we believe in the family, we can achieve only the most rudimentary successes in evening out many types of opportunities. And we

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certainly cannot control many types of luck. But we canand ought to curb one form of luck. Children lucky enough to have been raised, acculturated, and educated by wealthy parents need not be allowed the additional good fortune of inheriting their parents property. In this respect, we can do much better than we ever have before at equalizing opportunityTTTT This proposal sounds radical, perhaps even communistic. Inheritance does seem to occupy a special place in the hearts of many Americans, even those who cannot realistically expect to inherit anything of significance. For example, in 1982, sixty-four percent of the voters in a California initiative voted to repeal that states inheritance tax. Michael Graetz, who, like me, finds this element of the American psyche puzzling, explains it as a product of the optimism of the American people. In California, at least, sixty-four percent of the people must believe that they will be in the wealthiest five to ten percent when they die. This fascination with inheritance perhaps explains the minimal public debate about using the federal transfer taxes to raise substantial amounts of revenue. But curtailing inheritance is hardly radical. For years Americans have written seriously and thoughtfully on the subject. My proposal builds on that tradition and reaches the conclusion that substantial limitations on inheritance would contribute meaningfully to the equality of opportunity we offer our children. It also concludes that such limitations are fully consistent with our notions of private property. Neither conclusion is new. What is new is a $200 billion deficit. Now, as at few other times in this nations history, our government needs new sources of revenue. Accordingly, I suggest changes in the federal wealth transfer taxes that would curtail inheritance and raise revenue. If we cannot, or will not, control the deficit, this generations primary bequest to its children will be the obligation to pay their parents debts.

Professor Aschers article focuses on the inequality generated by inheritance. He notes, and others have emphasized, that the people most likely to inherit significant wealth are also the people whose parents have given themthrough education and transmission of cultural valuesthe most significant head start during their lifetimes. Professor John Langbein has written:
[I]n striking contrast to the patterns of last century and before, in modern times the business of educating children has become the main occasion for intergenerational wealth transfer. Of old, parents were mainly concerned to transmit the patrimonyprototypically the farm or the firm, but more generally, that provision in life that rescued children from the harsh fate of being a mere laborer. In todays economic order, it is education more than property, the new human capital rather than the old physical capital, that similarly advantages a childTTTT

John Langbein, The TwentiethCentury Revolution in Family Wealth Transmission, 86 Mich. L. Rev. 722, 732 (1988).

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Inequality, however, may not be the only social harm generated by inheritance. Manyincluding some people of great wealthhave expressed the fear that excessive inheritance breeds sloth in the children of the wealthy. See Andrew Carnegie, The Gospel of Wealth, 50 (1933). One can always find anecdotal evidence to support the hypothesis. For a number of examples, all drawn from the heirs to the Johnson & Johnson fortune, see David Margolick, Undue Influence: The Epic Battle for the Johnson & Johnson Fortune (1993), an entertaining account of the challenge to Seward Johnsons will. Wealth gives its bearer the freedom to be cushioned from market forces. Deborah C. Malamud, ClassBased Affirmative Action: Lessons and Caveats, 74 Tex. L. Rev. 1847, 1872 (1996). That freedom may lead some to take risks that generate great social benefit; it may lead others to a dissolute life. Why tolerate a social institution that generates both inequality and sloth? One answer is that accumulation of wealth is often a joint effort; members of a wealthy decedents familyparticularly decedents spouse may have contributed substantially to decedents ability to accumulate wealth. Note that even Professor Ascher would permit unlimited inheritance by a surviving spouse. And dependent children may have a right to support during their minoritya right not to be disadvantaged by their parents premature death. The more general answer, however, focuses not on the recipients of inheritance, but on the decedentthe person who earned the money in the first place. Professors Hirsch and Wang catalogue some of the justifications for inheritance: Adam J. Hirsch & William K.S. WangA Qualitative Theory of the Dead Hand, 68 Ind. L. J. 1, 614 (1992). The traditional rationales for testamentary freedom are as varied as they are controversial. Perhaps oldest is the notion that testators have a natural right to bequeath. Having created wealth by the sweat of her brow, the testator is naturally free to do with it as she pleasesincluding passing it along to others. Locke and Grotius, among other philosophers, took this view, which after centuries in eclipse has lately drawn flickers of judicial supportTTTT Seemingly as old as the natural rights rationale for freedom of testation are other rationales premised on the sort of utilitarian calculus that Bentham and his disciples methodized. One argument, tracing back to the thirteenth century jurist Henry de Bracton, if not earlier, holds that freedom of testation creates an incentive to industry and saving. Bractons assumptionshared by modern social scientistswas that persons derive satisfaction out of bequeathing property to others. To the extent that lawmakers deny persons the opportunity to bequeath freely, the subjective value of property will drop, for one of its potential uses will have disappeared. As a result, thwarted testators will choose to accumulate less property, and the total stock of wealth existing at any given time will shrink. Testamentary freedom accordingly fulfills the normative goal of

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wealth maximization, which is advanced by its proponents as the best available barometer of utility maximization. * * * Another argument for freedom of testation, also premised upon the goal of wealth enhancement, is that such freedom supports, as it were, a market for the provision of social services. Social life, like commercial life, is not a one-way street. Though classified by the law as gratuitous transfers, bequests within the family may in fact repay the beneficiary for value received (though of a sort not recognized as consideration under the common law)TTTT Cast into the icy language of economics, testamentary freedom serves the public interest by promoting the creation of greater stocks of noncommodity wealth. The testators power to bequeath encourages her beneficiaries to provide her with care and comfortservices that add to the total economic pie. * * * A secondary justification for the right of testation is that it would in practice be difficult to curtail. Were lawmakers to rescind the power of the will, testators would find other, less efficient ways to direct the distribution of their wealth. To attempt therefore to take the disposal out of their hands, at the period of their decease, would be an abortive and pernicious project, William Godwin opined two centuries ago. If we prevented them from bestowing it in the open and explicit mode of bequest, we could not prevent them from transferring it before the close of their lives, and we should open a door to vexatious and perpetual litigation. TTT * * * A final justification for freedom of testation, formulated with disarming unaffectedness by Professor Simes, is simply that the power to bequeath comports with political preferences: the desire to dispose of property by will is very general, and very strong. A compelling argument in favor of it is that it accords with human wishes. NOTES AND QUESTIONS 1. Blackstone, among others, disputed the Lockean notion that the right to dispose of ones estate emanates from natural law:
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 customTTTT Wills, therefore, and testaments, rights of inheritance and succession, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by themTTTT

2 William Blackstone, Commentaries 1112 (21st ed. 1844). For a more extensive survey of the attitudes of worldly philosophers toward inheri-

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tance, see James R. Repetti, Democracy, Taxes and Wealth, 76 N.Y.U. L. Rev. 825, 82831 (2001). 2. Professors Hirsch and Wang discuss the argument that allowing people to dispose of their property after death encourages industry; that in the absence of inheritance, people will work less, because there will be less reason for them to accumulate property.

Suppose the federal government imposed a 100% estate tax next week (perhaps with a modest exemption). How many people do you believe would become less productive as a result? Do people accumulate money to assure an inheritance for their children, or to assure that they will have resources to pay for their own care in old agecare that has become increasingly expensive in recent decades? Professor Jeffrey Sherman has written:
It is said that if inheritance and testation were abolished, everyone would plan to be dead broke on the day of [his] death. Undoubtedly that would be true of some people, but how would they contrive to die broke? A retired individual who, on the basis of what proved to be an underestimate of her remaining life expectancy, decided how much of her wealth to expend each year would find her wealth running out before she didTTTT In other words, property owners, however benevolently disposed they may be toward their progeny, have grave concerns about their own continued comfort and independence and about the maintenance

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of their socio-economic stations. The absence of testation rights might affect investment choices but would not be the determining factor.

Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, 1999 U. Ill. L. Rev. 1273, 129597. See also Karen C. Burke and Grayson M. P. McCouch, A Consumption Tax on Gifts and Bequests, 17 Va. Tax Rev. 657, 68990 (1998) [noting that behavioral foundations of personal consumption, savings, and gratuitous transfers remain largely unexplored]. Professor Shermans analysis finds support in the work of economists who developed the Life Cycle Hypothesis, which theorizes that devises are accidentalthe result of risk aversity in the face of uncertainty about ones own future needs and date of death. See, e.g., Franco Modigliani, The Role of Intergenerational Transfers and Life Cycle Saving in the Accumulation of Wealth, 2 J. Econ. Persp. 15 (1988). In recent years, some economists and lawyers have questioned the Life Cycle Hypothesis. See Laurence J. Kotlikoff, Intergenerational Transfers and Savings, 2 J. Econ. Persp. 41 (1988); Edward J. McCaffery, The Uneasy Case for Wealth Transfer Taxation, 104 Yale L.J. 283 (1994). If the Life Cycle Hypothesis is correct, is there any economic justification for inheritance? Who would spend money more wiselythe government or children of rich people? Would a prohibition on inheritance cause people to engage in conspicuous consumption before their deaths? 3. Professor Edward J. McCaffery, skeptical of the Life Cycle Hypothesis, fears that the wealthy might engage in increased consumption if inheritance rights were curtailed. He suggests that increased consumption by the wealthy might be a greater threat to ideals of equality than increased accumulation. Discussing Ross Perots incentives if faced with inheritance laws that provided for complete confiscation at death, McCaffery notes:
[A] complete confiscation, however, would surely impact incentives at the donor level. Mr. Perot would now be comparing $3 billion spent on himself with nothing given to his heirs; in this situation, he might decide to run an even more expensive campaign for President.

Edward J. McCaffery, The Uneasy Case for Wealth Transfer Taxation, 104 Yale L.J. 283, 321 (1994). (Under the current estate tax regime, for every dollar Perot spent on his campaign, he had to deprive his heirs or will beneficiaries of about 50 cents.) Professor Joel Dobris has also questioned the wisdom of the estate tax, except as a symbol of the egalitarian nature of our society. Joel C. Dobris, Federal Transfer Taxes: The Possibility of Repeal and the Post Repeal World, 48 Cleve St. L. Rev. 709, 711 (2000). 4. The Politics of Inheritance. As the excerpt from Professors Hirsch and Wang indicates, inheritance rights are politically popular. Would you expect those rights to be more or less popular with Congressmen and state

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legislators than with the public at large? Compared with John Q. Public, is the average Congressman more or less likely to have a personal stake in maintaining the right to inherit?

In every state, the Statute of Wills permits a decedent to write a will disposing of his property at death. As we have noted, we typically call a decedent who writes a will a testator. The Shapira case indicates that courts typically give effect to testators stated preferences, even when those preferences might be offensive to others. But are there circumstances in which courts will not give effect to testators intentions, as stated in the will? If so, what reasons justify ignoring decedents stated preferences? Consider the famous case of Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889). Francis Palmer wrote a will giving legacies to his two daughters, and the remainder of his estate to his grandson, Elmer E. Palmer. Sixteenyear-old Elmer learned of the will provisions, and poisoned his grandfather, causing his death. Elmer, noting that the will was made in due form and had been admitted to probate, sought to take under the terms of his grandfathers will. His aunts resisted. The Court of Appeals held that, in spite of statutory provisions directing that property should be distributed in accordance with the provisions of duly executed wills, Elmer was not entitled to inherit:
The purpose of those statutes was to enable testators to dispose of their estates to the objects of their bounty at death, and to carry into effect their final wishes legally expressed; and in considering and giving effect to them this purpose must be kept in view. It was the intention of the law-makers that the donees in a will should have the property given to them. But it never could have been their intention that a donee who murdered the testator to make the will operative should have any benefit under it.

115 N.Y. at 509, 22 N.E. at 189. The court went on to articulate a more general principle:
No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.

Id. at 511, 22 N.E. at 189. What principle underlies the common law rule articulated in Riggs v. Palmer? Is it that inheritance laws should punish murderers? Or that inheritance laws should serve to deter future murders? Or that a will which leaves property to testators killer is unlikely to reflect testators wishes at the moment of death?

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Consider the following case:

Ford v. Ford
Court of Appeals of Maryland, 1986. 307 Md. 105, 512 A.2d 389.

t ORTH, J. I Pearl Rose Ford murdered her mother, Muriel L. Holland, by stabbing her some 40 times. She wrapped the body in plastic garbage bags and deposited it in the backyard of her home. She now seeks to obtain the property left her under her mothers will. George Benjamin Ford, Jr., her son, asserts that Pearl forfeited her entitlement to the property by the matricide and claims the property as the alternative beneficiary named in the will. The Orphans Court for Anne Arundel County, in which the will was admitted to probate, ruled that George be declared the heir of the estate. The Circuit Court for Anne Arundel County, on appeal by Pearl to it, decided that Pearl was entitled to the property. We ordered that a writ of certiorari be issued to the Court of Special Appeals, to which George appealed, before decision by that court. II The Maryland Legislature has not enacted a slayers statute establishing what principles govern when a person kills another and would be tangibly enriched by the death. This Court, however, has addressed the matter in three of its decisions: Price v. Hitaffer, 164 Md. 505, 165 A. 470 (1933); Chase v. Jenifer, 219 Md. 564, 150 A.2d 251 (1959); and Schifanelli v. Wallace, 271 Md. 177, 315 A.2d 513 (1974). Through these cases the Court has created in the common law of this State, the equivalent of a slayers statute, which we shall refer to herein as the slayers rule. Price concerned an appeal from an Orphans Court order passed in the administration of the estate of an intestate. The order excluded from participation in the distribution of the estate the heirs or personal representatives of the husband of the deceased, who, it was admitted and proved, shot and killed his wife and almost immediately thereafter committed suicide. The question before this Court was:
Can a murderer, or his heirs and representatives through him, be enriched by taking any portion of the estate of the one murdered?

164 Md. at 506, 165 A. 470. The Court dealt with the question as one of first impression in Maryland and noted the conflicting decisions of other courts of last resort in this country. The decisions at that time represented two views.
One line of decisions apply the common-law principle of equity that no one shall be permitted to profit by his own fraud, to take advantage of his own wrong, to found any claim upon his own iniquity, or to acquire property by his own crime, and hold that provisions of a will and the statutes of descent and distribution should be interpreted in the light of those universally recognized principles of justice and morality; that

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such interpretation is justified and compelled by the public policy embraced in those principles or maxims, which must control the interpretation of law, statutes, and contracts. The other and opposite view, as expressed in those decisions which reach a different conclusion, is that, while they recognize the public policy of the common law as declared in the principles and equitable maxims above set forth, such public policy founded upon the common law has been abrogated and denied, and a new and different public policy declared by the Legislature in the enactment of statutes to direct descents and distribution, or governing the execution and effect of testamentary disposition. Some of the courts in the last mentioned group also rely upon constitutional or statutory declarations to the effect that conviction of crime shall not work a corruption of blood or forfeiture of estate.

Id. at 506507, 165 A. 470. The Court fully discussed the two views and forcefully rejected any view which would result in sanctioning the enrichment of the perpetrator of the most heinous murder from the estate of his victim. Id. at 516517, 165 A. 470.
Suffice it to say that we decline to follow the reasoning supporting any interpretation fraught with consequences so pernicious and so abhorrent to the sense of justice, equity, and morality entertained by what we are pleased to believe is the overwhelming majority of thoughtful and moral people, but prefer to give expression and adherence to the principles and reasoning so forcibly presented by those courts who have in the past adopted the views TTT expressed [in the common law].

Id. at 517, 165 A. 470. We observed in Chase v. Jenifer, 219 Md. at 567, 150 A.2d 251, that the decision in Price, which was rested upon the maxim that one cannot profit by his own wrong, and on a broad ground of public policy of the common law, was perhaps not then supported by a majority of the courts dealing with the question. Nevertheless, we declared, we regard the decision of the Maryland Court [in Price] as settled law. Chase, 219 Md. at 567, 150 A.2d 251. Thus, it is the basic rule of this State that a murderer, or his heirs or representatives through him, ordinarily may not profit by taking any portion of the estate of the one murdered. The Court in Price indicated that the equitable maxims of the common law which it followed in answering the question before it, would apply not only in the case of intestacy but equally to benefits by way of wills and life insurance policies. 164 Md. at 516, 165 A. 470TTTT * * * As established by Price, Chase and Schifanelli, the present status of the law of Maryland is: 1) A person who kills another a) may not share in the distribution of the decedents estate as an heir by way of statutes of descent and distribution, or as a devisee or legatee under the decedents will, nor may he collect the proceeds as a beneficiary under a policy of insurance on the decedents life when the homicide is felonious and intentional;

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b) may share in the distribution of the decedents estate as an heir by way of statutes of descent and distribution, or as a devisee or legatee under the decedents will and may collect the proceeds as a beneficiary under a policy of insurance on the decedents life when the homicide is unintentional even though it is the result of such gross negligence as would render the killer criminally guilty of involuntary manslaughter. 2) These principles apply not only to the killer but to those claiming through or under him. 3) The disposition of a criminal cause is not conclusive of the character of the homicide or of the criminal agency of the putative killer in a civil proceeding concerning entitlement to assets of the decedent. a) It is not dispositive that no criminal prosecution was brought against the alleged killer, or that charges against him were dismissed on constitutional, statutory or procedural grounds or otherwise, or that, upon a criminal trial he was found not guilty for whatever reason, or was convicted of murder in the first or second degree or of manslaughter. b) In the determination of who is entitled to the assets of the decedent, whether the alleged killer was the criminal agent and whether the homicide was intentional and felonious or unintentional is a function within the ambit of the civil proceeding. In short, the lack of or result of a criminal proceeding is not res judicata in a subsequent civil action. III It is not disputed that Pearl killed her mother and that under the criminal law she was guilty of first degree murder in that the homicide was wilful, deliberate and premeditated. Md.Code (1957, 1982 Repl.Vol.) Art. 27, 407. Were this the posture of the case, it is clear that under the slayers rule adopted by the PriceChaseSchifanelli trilogy, Pearl would be precluded from sharing in the estate of her victim; her conduct would be both felonious and intentional. But in addition to the fact that Pearl was the criminal agent of a first degree murder, it is also undisputed that at the time the crime was committed, she was not criminally responsible by reason of insanity. In short, she stands as guilty of murder in the first degree but insane. See generally Pouncey v. State, 297 Md. 264, 465 A.2d 475 (1983) (Criminal defendant can be found both guilty of the crime and insane at the time of its commission). The question is, therefore, what impact does the fact that Pearl was insane at the time she committed the crime have on the slayers rule established by PriceChaseSchifanelli? * * * IV Pearl Rose Ford went to trial before a jury in the Circuit Court for Anne Arundel County on pleas of not guilty and not guilty by reason of insanity. While the jury was deliberating its verdicts (four days were consumed before the case went to the jury) she moved to enter a plea of not guilty by reason of insanity. The court accepted the plea and took the

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case from the jury. A docket entry reads that Pearl waived right to jury in open Court and reflects the verdicts rendered by the judge in these words:
Finding: That there was sufficient evidence to establish the defendants guilt if sane. That the defendant is not guilty by reason of insanity.

The court committed her to the Department of Health and Mental Hygiene for examination and evaluation and subsequently ordered that she be treated on an in-patient basis at Crownsville Hospital Center until further order. Although the verdicts as rendered could have been better expressed in light of the existing law, we are satisfied that to all intent and purpose, they were in accord with the required procedure as the equivalent of Guilty of murder in the first degree and Not criminally responsible by reason of insanity under the test for criminal responsibility. In other words, the verdicts were, in effect, albeit not literally, guilty and insane. * * * VI As we have seen, for the slayers rule to be invoked the killing must have been both felonious and intentional. We have found that it is a function of the trier of fact in a civil proceeding regarding the entitlement of the assets of a decedent alleged to have been killed by a claimant to make an independent determination of the corpus delicti of the crime. The trier of fact must decide on a preponderance of the evidence whether the manner of the decedents death was homicide, whether the homicide was murder or manslaughter and whether the claimant was the criminal agent. Unlike a criminal prosecution, the civil proceeding does not call for a determination of the degree of murder. Both first and second degree murder are per se felonious and intentional. The civil inquiry, however, must go a step further than is necessary in a criminal prosecution if the finding is that the homicide is manslaughter. See Connor v. State, 225 Md. 543, 558559, 171 A.2d 699, cert. denied, 368 U.S. 906, 82 S.Ct. 186, 7 L.Ed.2d 100 (1961). Then the trier of fact in the civil proceeding must ascertain whether the manslaughter was voluntary or involuntary. Manslaughter generally, be it voluntary or involuntary, is a felony. Code, Art. 27, 387. But see Code, Art. 27, 388. Voluntary manslaughter is intentional; involuntary manslaughter is, by definition, unintentional. Rolfes v. State, 10 Md.App. 204, 207, 268 A.2d 795 (1970). Schifanelli, 271 Md. 177, 315 A.2d 513, teaches that if the killing is unintentional it is without the ambit of the slayers rule even though it is felonious. If the civil inquiry were to stop here, a determination that the killing was homicide, that the homicide was murder or voluntary manslaughter and that the claimant was the criminal agent would raise the bar of the slayers rule. All the above determinations are to be made on the assumption that the claimant was responsible for his criminal conduct, that he was sane at the time of the commission of the killing. The inquiry continues, however, upon the suggestion that the killer was insane within the

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meaning of our criminal responsibility law at the time he committed the offense. The trier of fact must determine whether, at the time the claimant killed the decedent, he lacked substantial capacity to appreciate the criminality of that conduct, or to conform that conduct to the requirements of law, because of a mental disorder or mental retardation. If the claimant were in that category, he would not be criminally responsible for the killing. It is at this point, upon a finding that the claimant was not criminally responsible for his criminal conduct, that the question we noted supra, arises, namely what impact does the fact that the claimant was insane at the time of the commission of the crime have on the slayers rule. The answer is that the slayers rule is simply not applicable when the killer was not criminally responsible at the time he committed the homicide. * * * Our view is not in conflict with the maxims which support the slayers rule which we have judicially adopted. The rule is based upon principles of equity, justice and morality and on a broad ground of the public policy of the common law. Chase v. Jenifer, 219 Md. at 567, 150 A.2d 251; Price v. Hitaffer, 164 Md. at 511, 516518, 165 A. 470. Equally a matter of equity, justice and morality and a reflection of public policy is the present enlightened definition of criminal insanity under which punishment for the commission of a crime is prohibited. The terms of that definition simply make the maxims prompting the ruleno one shall be permitted to profit by his own fraud, to take advantage of his own iniquity, or to acquire property by his own crimeinappropriate when a person is criminally insane. A person who suffers a mental disorder or is mentally retarded and falls under the cognitive and volitive components of the criminal responsibility statute does not, by the very terms of those components, act with an unfettered will. His conduct is controlled and his will is dominated by his mental impairment. Fundamentally, a killing is felonious when the homicide is a felony. In the frame of reference of the slayers rule, however, the legislative policy regarding criminal responsibility leads to a qualification of this meaning. We believe that for a homicide to be felonious in the context of the slayers rule, it must be a felony for which the killer is criminally responsible under Marylands criminal insanity test. Therefore, if a killer is insane at the time he killed, the killing is not felonious in the contemplation of the slayers rule. If the killing is not felonious, even though it may be intentional, the rule does not apply. Our view does not do violence to the broad public policies inherent in both the rule and the criminal insanity statutes. On the contrary, it furthers the principles of equity, justice and morality recognized by both the rule and the statutes. The result that we reach is in complete accord with the decisions of our sister states which have addressed the problem. Forty-three other states have adopted by legislative enactment a slayers rule comparable in effect to our rule, and several have embraced such a rule through its case lawTTTT We find that the courts in only 16 of those states, however, have construed