be extended; it is that where any devise or bequest is made to a child or other issue of the testator, and such child or other issue dies during the testator's lifetime, and any issue of such child or other issue shall be living at the testator's death, then the devise or bequest is not to lapse, but to take effect exactly as if the child or other issue had died immediately after the testator's death, unless a contrary intention appear by the will (y). 7. Where there is a lapse of any devise or bequest of any real or personal property by reason Residuary gift. of the devisee or legatee dying in the testator's lifetime, and the case does not come within either of the preceding rules, or where a gift is contrary to law (as real estate or impure personal estate (z) given to charities), then the property comprised in the devise or bequest so failing shall fall into the residuary devise or residuary bequest (if any), according to the nature of the property (a). Succession duty. To complete our account of descents and devises, we ought here to notice that a recent act has imposed upon every succession of real property whereby property accrues, upon the death of any person, to another, duties similar in character to those which have been imposed upon legacies. The act which imposes them (b) is so framed as to include every case where a person acquires a beneficial interest, or additional beneficial interest, in property upon the death of another, or upon any period determined by the death of another person who died after the commencement of the act (c), except where the deceased is the husband or* wife of the successor. It lays down rules for [* 568] the determination of the question who, in each particular case, is to be deemed the predecessor (d), from whom the succession is derived. It imposes the following duties:-Where the successor is of the lineal issue, or lineal ancestor of the predecessor, a duty of one per cent. upon the value of the succession. For a brother or sister, or descendant of a brother or sister of the predecessor, a duty of three per cent. upon such value. For a brother or sister of the father or mother of the predecessor, or any of their descendants, a duty of five per cent. upon such value. For a brother or sister of the grandfather or grandmother of the predecessor, or any of their descendants, six per cent. upon such value. For all other relationships, and for strangers in blood, ten per cent. upon such value. Rules are laid down for the valuation of every species of interest, which valuations are made upon the supposition that the succession consists of an annuity equal to the annual value of the property (after making certain allowances), and payable during the residue of his life, or any less period that he may be entitled to it. The act contains tables for the calculation of the value of interest, and the duty is to be paid by eight equal half-yearly installments, determinable (if the interest of the successor be determinable) upon the death of the successor, the first being payable one year after the death of the person upon whose death the succession took place. The duty is made a first charge upon the property, and therefore it is (y) S. 33. (2) I.e. money charged upon land or derived from the sale of lands. (a) S. 25 lays down the rule as to real estate. The rule was previously adopted as to lapsed legacies and bequests. VOL. I.-99 (b) 16 & 17 Vict. c. 51. (c) 19 May, 1853. (d) Upon which rules a vast number of cases have already arisen from judicial consideration, which cannot, however, be here noticed. incumbent upon all persons dealing with successors to see that the duty has been paid. Before concluding our remarks upon the subject of title, we may here men. tion that recently an act has been passed (e) for the purpose of facilitating the [* 569] Registry for proof of title* to, and the conveyance of, real estates. titles. Under this a public registry has been established, where any owner may register his title, and so obtain an absolute indefeasible title. The conditions and provisions subject to which, and the details of the way in which this is to be done, cannot find a place here. They are intended to abolish the laborious and expensive investigations which are usually undertaken upon every dealing with lands. Whether the result will realise the hopes of those who originated the scheme, remains to be shown. Up to the present time, the powers conferred by the act have not been extensively used (f). The view which we have taken of the various assurances by which things real may be alienated, completes, so far as our limits will allow, the account which we have to give of the mode by which title to them may be reciprocally lost and acquired. We have before considered the estates which may be had in them, with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connections of the persons entitled to hold them; we have examined the tenures, both ancient and modern, whereby those estates have been, and are now, holden: and have distinguished the object of all these inquiries, namely, things real, into the corporeal or substantial, and incorporeal or ideal kind; and have thus considered the rights of real property in every light wherein they are contemplated by the laws of England. A system of laws that differs much from every other system, except those of the same feudal origin, in its notions and regulations of landed estates; and which therefore could in this particular be very seldom compared with any other. The subject which has thus employed our attention is of very extensive use, and of as extensive variety. And yet, possibly, it has afforded the student less amusement * and pleasure in the pursuit, than the matters discussed [*570] in the preceding volume. To say the truth, the vast alterations which the doctrine of real property has undergone from the conquest to the present time; the infinite determinations upon points that continually arise, and which have been heaped one upon another for a course of seven centuries, without any order or method; and the multiplicity of acts of parliament which have amended, or sometimes only altered, the common law: these causes have made the study of this branch of our national jurisprudence a little perplexed and intricate. Fortunately for us, the tendency of recent legislation has been to place the law upon a footing almost equal in simplicity to that which existed in the most ancient times, and yet to no inconsiderable extent accompanied by means and appliances suitable to our modern wants. (394) (e) 25 & 26 Vict. c. 53. (f) See debate in the House of Commons, July, 1869. (394) Nuncupative wills ought to be mentioned, although not much in use, and not so important as formerly. The right to make such a will has been limited by statute in Eng. land, and in many of the States in this country. Some of these statutes limit the right of making such a will to soldiers in actual military service, and to mariners at sea. The right CHAPTER XXIV. THINGS PERSONAL. [*571] UNDER the name of things personal are, according to its primary signification, denoted all sorts of things moveable, which may attend a man's person wherever he goes; and therefore, being only the objects of the law while they remain within the limits of its jurisdiction, and being also of a perishable quality, had not originally so much regard from the law, as things that are in their nature more permanent and immoveable, as What are things personal. however, is not so restricted in all the States, as will be seen by the cases subsequently noticed. It has been found by experience that, to permit a will to be made by mere oral declarations, and to dispense with writing for that purpose, has opened the way to the grossest frauds; and, hence, the restrictions mentioned. The general rule may be stated to be that a nuncupative will is not valid unless it is made when the testator is in extremis, or is overtaken by sudden and violent sickness, and has not time to make a written will; and by the term "last sickness" is to be understood the last extremity at a time when the testator did not expect to recover. Prince v. Hazleton, 20 Johns. 502; Ellington v. Dillard, 42 Ga. 361; O'Neill v. Smith, 33 Md. 569. But see Hubbard v. Hubbard, 8 N. Y. (4 Seld.) 203, and the cases there cited. This mode of disposing of property is confined to personal property, and does not extend to lands, which cannot be disposed of by a nuncupative will. Smithdeal v. Smith, 64 N. C. 52; Smith v. Thurman, 2 Heisk. (Tenn.) 110; Palmer v. Palmer, 2 Dana (Ky.), 390. A soldier is permitted to make a valid nuncupative will, if made while he is "in actual military service." The construction of this expression has been several times considered by the courts. In a Vermont case it was held that, when a soldier is in the enemy's country, performing military service, whether in camp, in campaign or in battle, such service is actual military service within the letter and spirit of the statute. Van Deuzer v. Gordon, 39 Vt. 111, 119. In such a case, it is not necessary that the soldier should be in extremis at the time of making a nuncupative will. Ib. A soldier who is in service, and who is taken sick on the march, and falls out and is carried to the hospital, is in such actual military service as to be entitled to make such a will. Gould v. Safford's Estate, 39 Vt. 498. Where a soldier in an army writes to his wife, and the letter sent to her contains this expression: "If I never return home I want all I have to be my wife's;" and he subsequently returns home, where he dies, this will not be a valid will. Magee v. McNeil, 41 Miss. 17. So, where an enlisted soldier, who has not entered on actual service, delivers a promissory note with the expression, "I give you this note; if I never return it is yours," and the donor dies while a soldier, of a disease contracted in the service, this is not a valid gift, donatio mortis causa. Irish v. Nutting, 47 Barb. 370. So of a similar gift of money. Dexheimer v. Gautier, 34 How. 472; 5 Rob. 216. During the late rebellion, if a soldier, who had been duly mustered into the United States service, marched into the enemy's country and encamped among a hostile population, and acted in conjunction with other soldiers who confronted the rebel army, he is in such actual military service as to enable him to make a valid nuncupative will, or to dispose of his personal property by a letter written for that purpose. Leathers v. Greenacre, 53 Me. 561, 566; Botsford v. Krake, 1 Abb. N. S. 112; and see Anderson v. Pryor, 10 Sm. & Marsh. (Miss.) 620. The term seaman, or mariner, includes the entire naval force or service, and applies to all the officers or sailors, while at sea or temporarily absent on leave, as well as to the merchant service. Ex parte Thompson, 4 Bradf. Surr. 154. A cook who is lying sick on board of a steamship, which is lying at her wharf in a foreign port, is a seaman within the meaning of the law as to nuncupative wills. Ib. So a valid nuncupative will may be made by a captain of a coasting vessel while she is on a voyage, and while lying at anchor in an arm of the sea where the tide ebbs and flows. 8 N. Y. (4 Seld.) 196; affirming S. C., 12 Barb. 148. The name now has a much lands and houses, and the profits issuing thereout. more extensive signification than it anciently had. not connected with land, was comparatively very trifling during the scarcity of money and the ignorance of luxurious refinements which prevailed in the feudal ages. Hence it was, that a tax of the fifteenth, tenth, or sometimes a much larger proportion, of all the moveables of the subject, was frequently laid without scruple, and is mentioned with much unconcern by our ancient historians, though now it would justly alarm our opulent merchants and stockholders. And hence, likewise, may be derived the frequent forfeitures inflicted by the common law of all a man's goods and chattels, for misbehaviours and inadvertencies that at present hardly seem to deserve so severe a punishment. Our ancient law-books, which are founded upon the feudal provisions, do not therefore often condescend to regulate this species of property. There is not a chapter in Britton or the Mirror, that *can fairly be referred to this [* 572] head; and the little that is to be found in Glanvill, Bracton, and Fleta, seems principally borrowed from the civilians. But in modern times, for reasons that are sufficiently apparent to every one, we have learned to conceive different ideas of it. Our courts now regard a man's personalty in a different light, it is true, but with importance nearly, if not quite, equal to his realty: and have adopted a more enlarged and less technical mode of considering the one than the other; frequently drawn from the rules which they found already established by the Roman law, wherever those rules appear to be wellgrounded and apposite to the case in question, but principally from reason and convenience, adapted to the circumstances of the times; preserving still a due But, where the testator was a mariner by profession, and made his will on board of a steamer in the Delaware river, which was towing a vessel in which he was to sail as a passenger to Chagres, there to take command of a lighter, to lighten vessels arriving in that river, he was held not to be a mariner in service. Warren v. Harding, 2 R. I. 133. A captain of a United States gunboat during the late rebellion (in 1863) made a nuncupative will on board of it on the Mississippi river, opposite to the city of Vicksburgh; but it was held that the captain was not a mariner "at sea," and the will was held invalid. Matter of Guin, 1 Tuck. Surr. 44. Nuncupative wills are not favorites of the law, and the courts usually require a full and strict compliance with the requirements of the law in relation to them. Taylor's Appeal, 47 Penn. St. 31, 36; Biddle v. Biddle, 36 Md. 630, 643; Dorsey v. Sheppard, 12 Gill & Johns. 192, 198; Yarnall's Will, 4 Rawle, 45; Andrews v. Andrews, 48 Miss. 220. It must clearly appear that the testator had testamentary capacity at the time of making his will. Dorsey v. Sheppard, 12 Gill & Johns. 192; Biddle v. Biddle, 36 Md. 630, 643; Yarnall's Will, 4 Rawle, 45, 62. It must be satisfactorily established that the proper number of witnesses were duly requested by the testator to hear his declarations, and that they are called upon for the pur pose of attesting his will. Yarnall's Will, 4 Rawle, 45, 62, 63; Taylor's Appeal, 47 Penn. St. 31, 37; Biddle v. Biddle, 36 Md. 630, 643, 644; Andrews v. Andrews, 48 Miss. 220; Hebden's Will, 20 N. J. Eq. 473; Dawson's Appeal, 23 Wis. 69. It is not necessary that the testator should use the exact words of the statute, for any words that express a clear intention to give his estate to a certain person will be sufficient to pass the property. Weir v. Chichester, 63 Ill. 453, 455. He need not call upon the persons present by name to become witnesses to his will, for " any form of expression, however imperfectly uttered, so that it conveys to the minds of those to whom it is addressed the idea that he desires them or some of them to bear witness to the disposition he is making of his property, will be deemed a compliance with the statute in that regard." Ib.; Arnett v. Arnett, 27 Ill. 247; Hatcher v. Millard, 2 Coldw. (Ky.) 31. regard to ancient usages, and even a certain feudal tincture, which is still to be found in some branches of personal property, though not easily discernible. We will, pursuing the plan adopted in our former chapters concerning real property, inquire shortly into the nature of the several species of property, then into the interests which may be had in them, and afterwards the title by which they may be acquired and lost. And first, as to their nature. (395) Various phrases have been at different times used to express personal property, but they have not generally been sufficiently comprehensive to include all that is now intended by that term. Thus, the word chattels has been used, derived by Sir Edward Coke (a) from the French, though it is in fact the same as the technical Latin term catalla, and primarily signified only beasts of husbandry (hence called at this day cattle). This word is by no means co-extensive with personal property, yet it acquired (by being set in opposition to a feud) a very enlarged meaning; first, it was extended to all moveables in general (b); next, it was made to include not only all moveable things called chattels personal (c), but also the inferior [*573] Chattels. interests in land, thence called chattels real. Chattels real. Chattels real, says Sir Edward Coke (d), are such as concern, or savour of, the realty; as terms for years of land, wardship in chivalry (while the military tenures subsisted), the next presentation to a church, estates by statute-merchant, statute-staple, elegit, or the like; of all which we have already spoken. And these are called real chattels, as being interests issuing out of, or annexed to, real estates: of which they have one quality, viz., immobility, which denominates them real; but want the other, viz., a sufficient, legal indeterminate duration; and this want it is that constitutes them chattels. The utmost period for which they can last is fixed and determinate, either for such a space of time certain, or till such a particular sum of money be raised out of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another's life: their tenants were considered upon feudal principles, as merely bailiffs or farmers; and (a) Co. Litt. 118. (b) Dufresne, ii. 409. See Le Grand Coustumier, c. 87. (c) So, too, in the Norman law, Cateux sont meubles et immeubles; si comme vrais meubles sont qui transporter se peuvent, et ensuivir le corps: immeubles sont choses qui ne peuvent (395) It is important to recollect that personal things or property may be considered in two very different aspects; one of which signifies the thing or property possessed, and the other the right of possession. When the term personal property is used as descriptive of, or as designating, the things owned, and not in relation to the right of ownership, it includes, at the common law, all those things in which a person may have a right and interest to the exclusion of all others, excepting only such property as is termed real estate. One of the essential distinguishing features or qualities of personal property is, that it is moveable, while property regarded as real estate is immoveable. There may, however, be such alterations of property as to change real into personal property, or to change personal into real property. A tree while growing is regarded as real estate; but, if it is cut down, it becomes personal property. Minerals in the earth are real property, and yet they may become personal property by digging them out of the ground. So, personal property may be converted into real estate; as where brick, stone, or timber are carried upon real estate and built into a house upon such lands. such building, the materials may again become personal property. Prop. 26, 27. And, by tearing down See Schouler on Pers. |