Inside the family, too, the members become persons in their own right. So the person who leaves an inheritance may treat his heirs somewhat differently. But only within narrow limits. Otherwise he violates the basic relationship of the family.

Why should the last will not simply count?

Because the will of a dead person is nothing higher than the right of the family. People respect it out of love and reverence. Where the family is still alive, this will must not pass over it. Only where the family has become distant and weak does the last will have more room.

A look at Rome:

In ancient Rome, the father could disinherit his children, just as he had the right to kill them. He could sell his son. The wife stayed more tied to the family she came from than to her own. She did not inherit from her husband and children, and the children did not inherit from her. This was harsh and unethical. The judges had to use tricks to make reason win against bad laws.

Against favoring some heirs:

Some orders of inheritance wanted to preserve the glory of a house. They shut out the daughters in favor of the sons. Or they shut out all the children in favor of the eldest. This violates the freedom of property. It rests on pure arbitrary will. Love belongs to real people, not to a family tree. Equal shares in inheritance actually preserve families better.

Only at a higher political level do other rules hold. There a privilege of the first-born can be necessary. We will speak of this later.

Summary: A will may only make limited distinctions between the children. The will of the dead does not stand above the right of the family. Favoring sons or the first-born violates freedom and love.

[zu § 180 Anm.] Wanting to make the family independent of all external contingencies. – Even within the patriarchal condition itself, changes occur in circumstances of fortune – here positive legislation is needed for this, in which precisely free personality – (coming of age) – is the principle.
Fief in its kind – also family-fideicommissary – the property of the princely family is one of the links in the chain through which the state has become a state – of infinite importance –
α) property,
β) inalienability,
γ) entail [primogeniture] – indivisibility –
The wife serves, is for the husband’s use, and for propagating the family; – once he is dead, her use, her position, is lost – she is poor, dependent on the mercy of her sons; if she has only daughters, no sons – common poverty, no provision made for her. – Harsh conditions, sisters, widows, given over to a harsh, unethical fate – the female family not provided for – the wife no honor
α) continuing minority – from generation to generation
β) exclusion of the daughters; – daughters – inequality with [their] brothers – daughters in need of support – equal capacity – to possess property – Athens, Sparta – This has its origin in times when noble daughters α) found lodging and provision in [religious] foundations, β) were restricted in marriage to their own rank, so that the men of their rank had no marriages open to them other than such marriages with girls without property. γ) customs, altogether patriarchal – partly the harshness something like fate – partly – the landowner [having] few needs and purposes to spend on, not as a merchant, but as father of his family, consumed together with his own people –
Harsh conditions. α) sisters poor, β) a wife in [former] prosperity – in needy circumstances after her husband’s death, does not have her condition as a dignity, [as] a matron.