the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists (b). And thus a lease for years, an obligation, a jewel, a flock of sheep, or other chattel interest, will vest in the successors, by succession, as well as in the identical members, to whom it was originally given. Distinction as to sole corporations. * But, with regard to sole corporations, a considerable distinction [* 616] must be made. For, if such sole corporation be the representative of a number of persons; as the master of an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, who represented the whole convent; or the dean of some ancient cathedral, who stands in the place of, and represents in his corporate capacity the chapter; such sole corporations as these have, in this respect, the same powers as corporations aggregate have, to take personal property or chattels in succession. And, therefore, a bond to such a master, abbot, or dean, and his successors, is good in law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representative (c). Whereas, in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession; and, therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successors, shall have it (d). For, the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John bishop of Oxford and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such his successors. The reason of this is obvious: for, besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that, if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from the death of the present owner until the successor be *appointed: and this is contrary to the nature of a chattel interest, [* 617] which can never be in abeyance or without an owner (e); but a man's right therein, when once suspended, is gone forever. This is not the case in corporations aggregate, where the right is never in suspense; nor in the other sole corporations before mentioned, who are rather to be considered as heads of an aggregate body, than subsisting merely in their own right: the chattel interest, therefore, in such a case, is really and substantially vested in the hospital, convent, chapter, or other aggregate body; though the head is the visible person in whose name every act is carried on, and in whom every interest is therefore said (in point of form) to vest. But the general rule, with regard to corporations merely sole, is this, that no chattel can go to or be acquired by them in right of succession (f). (b) Bro. Abr. tit. Estates, 90; Cro. Eliz. 464. (e) Brownl. 132. Yet, to this rule there are some exceptions. One in the case of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors (g). Again, it has been held that the ornaments of the chapel of a bishop belong to the succeeding take a chattel by bishop (h); and hangings and fixtures may pass from one parson to another by succession, continuing in the nature of heir Two cases in which a corporation sole may succession. looms (i). London. Another exception is, where, by a particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. And this custom, being against the general tenor of the common law, must be strictly interpreted, and not extended to any other chattel interest than such immemorial usage will strictly warrant. Thus, the chamberlain Chamberlain of of London, who is a corporation sole, may, by the custom of London, take bonds and recognizances to himself and his successors, for the benefit of the orphan's fund (k): but it will not [* 618 ] Follow from thence, that he has a capacity to take a lease for years to himself and his successors for the same purpose; for the custom extends not to that: nor that he may take a bond to himself and his successors, for any other purpose than the benefit of the orphan's fund; for that also is not warranted by the custom. The next method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband, with the same degree of property, and with the same powers, as the wife, when sole, had over them. In view of approaching changes in this head of law, we need be but very brief (7). (410) And we may call to mind that, by the aid of trustees, acting Title by marriage. (g) 1b. 90. (h) Corven's Case, 12 Rep. 105. (i) 4 Burn. Eccl. L. 304. See 7 B. & Cr. 113; 7 Bligh. (k) 4 Rep. 65; Cro. Eliz. 862. (410) In this country the statutes of the several States so generally declare and define the rights of husband and wife as to property, that a reference to common-law decisions is of much less importance than it would be in the absence of such statutory provisions. In relation to the wife's separate estate a learned and accurate writer says: “But this attempt to point out doctrines held in particular States becomes wearisome and unsatisfactory. We have seen how the English course of adjudication has varied from time to time. It is much the same in our States. It is impossible for the author to know whether any doctrine he may set down in the text will be held by any court hereafter. The practitioner must look carefully at what has been adjudged in his own State, examining the cases in the original reports for himself, look at the true principles, consider the mental conformation and habits of the individual men who, at the time when a controversy arises, compose the supreme bench of his State, then judge of the question before him somewhat as he would of a game of chance; and if his client, after being informed of the nature of the ground, chooses to travel it, he may well go along over it with her to guide, yet hardly to protect, keeping meanwhile in full sight of her husband." 1 Bishop's Law of Married Women, § 869. In a note to this section will be found a summary of the law in many of the States, as to the wife's power to dispose of her separate estate. Keeping constantly in view the fact that statutory provisions are controlling, and that in most, if not all of the States, such provisions exist, a few of the numerous decisions will be noticed. At common law a gift to a female before marriage, at the celebration of the marriage or afterward, vests the title to the gift in the husband, whether the present was made by the wife's father or some other relation or friend of hers. Bragg v. Massie, 38 Ala. 89, 103; subject to the control of the Court of Chancery, the whole theory has long been, to a great extent, in operation among the richer classes. The following outline will therefore be sufficient here. Chattels real of wife. A distinction is taken between chattels real and chattels personal, and of chattels personal, whether in possession, or reversion, or in action. A chattel real vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture (m): if he be outlawed or attainted, it shall be forfeited to the king (n); it is liable to execution for his debts (o); and, if he survives his wife, it is to all intents and purposes his own (p). Yet, if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot dispose of it by will (g): for, the husband having made no alteration in the property during his life, it never was transferred from the wife; but after his death she shall remain in her ancient *possession, and it shall not go to his [* 619] executors. If, however, the wife die in the husband's lifetime, the Chattels personal chattel real survives to him. As to chattels personal (or choses) in action; as debts upon bonds, contracts, and the like; these the husband may have if he pleases; that is, if he reduces them into possession by receiving or recovering them at law (r). And upon such receipt or recov of wife. (m) Co. Litt. 46. See 5 Mee. & W. 142. (n) Plowd. 263. (0) Co. Litt. 351. (p) Ib. 300. (q) Poph. 5; Co. Litt. 351. (r) It has been held that where a man covenants to pay an annuity, and then marries the annuitant, the annuity is only suspended, and revives after the husband's death. Fitzgerald v. Fitzgerald, L. R. 2 P. C. 83. Burns v. Hudson, 37 id. 62; Machen v. Machen, 15 id. 373; Pendleton v. Mills, 2 Ga. Decis. 166; Whitaker v. Whitaker, 1 Dev. (N. C.) 310; Pettijohn v. Beasley, 4 id. 512; The Ordinary v. Geiger, 1 Brevard, 484; Early v. Sherwood, Dudley (Ga.), 7; Cropsey v. McKinney, 30 Barb. 47; Krause v. Beitel, 3 Rawle, 199. But where a man had a wife who was living at the time of his second marriage, a gift to the second wife will not vest any title to the present in him. Sellars v. Davis, 4 Yerg. (Tenn.) 503. The earnings of the wife, the products of her personal exertions, skill, or experience, are the absolute property of the husband if no statute declares a different rule. Switzer v. Valentine, 4 Duer, 96; 10 How. 109; McKavlin v. Bresslin, 8 Gray, 177; Hinman v. Parkis, 33 Conn. 188; Raybold v. Raybold, 20 Penn. St. 308; Skillman v. Skillman, 15 N. J. Eq. 478; Elliott v. Bently, 17 Wis. 591; Todd v. Todd, 15 Ala. 743; Bradbury v. Andrews, 37 Me. 199; Merrill v. Smith, id. 394; Hoyt v. White, 46 N. H. 45; Baxter v. Prickett, 7 Ind. 490. At common law the legal effect of a marriage which renders the parties husband and wife is, among other things, that of vesting in the husband an immediate and complete title to all the personal property of which the wife is at that time in possession, for her possession is, in law, his possession of such property. Carleton v. Lovejoy, 54 Me. 445; Jordan v. Jordan, 52 id. 320; Burleigh v. Coffin, 22 N. H. 118; Ames v. Chew, 5 Metc. (Mass.) 320; Blanchard v. Sawyer, 2 Barb. 352; Jaycox v. Caldwell, 51 N. Y. (6 Sick.) 395, 398; Hopper v. McWhorter, 18 Ala. 229; Pope v. Tucker, 23 Ga. 484, 487; Martin v. Poague, 4 B. Monr. 524; Brown v. Brown, 6 Humph. (Tenn.) 127; Carroll v. Lee, 3 Gill & Johns. (Md.) 504. And the same rule prevails where her personal property is in the actual possession of some third person. Gwynn v. Hamilton, 29 Ala. 233; Brown v. Fitz, 13 N. H. 283; Westervelt v. Gregg, 12 N. Y. (2 Kern.) 202; Ryder v. Hulse, 24 N. Y. (10 Smith) 372; Miller v. Blackburn, 14 Ind. 62; Whitaker v. Whitaker, 1 Dev. (N. C.) 310; Armstrong v. Simonton, 2 Murph. (N. C.) 351; Sausey v. Gardner, 1 Hill (S. C.), 191; Daniel v. Daniel, 2 Rich. Eq. 115; Wallace v. Burden, 17 Texas, 467. ery, they are absolutely and entirely his own; and shall go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But, if he dies before he has recovered or reduced them into possession, so that, at his death, they still continue choses in action, they shall survive to the wife; for the husband never exerted the power he had of obtaining an exclusive property in them (s). If the wife die before the husband has reduced choses in action into possession, he does not become entitled by survivorship: nevertheless, he may, by becoming her administrator, gain a title. Chattels in possession, such as ready-money and the like, vest absolutely in the husband, and he may deal with them, either whilst living, or by his will, as he pleases. Where the interest of the wife is reversionary, the husband's power is but small: unless it falls into possession during the marriage, his contracts or engagements do not bind it. The extent of the wife's power in such a case has already been pointed out (t). Reversionary interests. The husband's power to acquire a property in all the personal substance of the wife is then, we see, considerable: but in one particular instance the wife may acquire a property in some of her husband's goods; which shall remain to her after his death, and not go to the executors. *These are called her paraphernalia; which is a term borrowed from the civil law (u), and Paraphernalia. [* 620] is derived from the Greek language, signifying something over and above her dower. Our law uses it to signify the apparel and ornaments of the wife, and a necessary bed (x), suitable to her rank and degree; and therefore even the jewels usually worn by her, have been held to be paraphernalia (y). (411) These she becomes entitled to at the death of her husband, over and above her jointure or dower, and preferably to all other representatives (z). Neither can the husband devise by his will such ornaments and jewels of his wife; though during his life perhaps he has the power (if unkindly inclined to exert it) to sell them or give them away (a). But if she continues in the use of them till his death, she shall afterwards retain them against his executors and administrators, and all other persons except creditors where there is a deficiency of assets (b). (412) And her necessary apparel is protected even against the claim of creditors (c). (8) Co. Litt. 351. An exception was made by 32 Hen. 8, c. 37, as to arrears of rent due to the wife before coverture; that statute giving them absolutely to the husband. (t) Ante, p. 472. (u) Dig. 23. 3. 9. § 3. (x) Com. Dig. Baron et Feme. (y) Moor. 213; 11 Vin. Ab. 180; 2 Atk. 77. (2) Cro. Car. 343; 1 Roll. Abr. 911; 2 Leon. 166. (a) Noy's Maxims, c. 49. Grahame v. Ld. Londonderry, 24 Nov. 1746. Canc. (b) 1 P. Wms. 730. (c) Noy's Maxims, c. 49. (411) The jewelry and furniture of the wife are paraphernal property, and may be sold by her, and the proceeds invested in other property, in the name of a trustee for her separate use. Gully v. Hull, 31 Miss. (2 George) 20. (412) Illexan v. Wilson, 43 Me. 186; Puryear v. Puryear, 12 Ala. 13, 15. A gold watch worn by the widow is paraphernalia, and may be subjected by the administrator to the payment of debts; her remedy is in equity for the value if there be assets after the pay. ment of debts. Howard v. Menifee, 5 Pick. (Ark.) 668, 670, 671. The court said: "There is, however, a qualification of the power of the husband over such property of his wife as is denominated her paraphernalia. This was something over and in addition to dower at common law, or the widow's reasonable part' of the personal estate of the husband, and consisted of such jewels, articles of luxury, or of personal ornament and decoration as were [*621] Classification of persons with reference to obligations. *CHAPTER XXX. TITLE BY BANKRUPTCY. IN the present chapter we are led to consider a mode of transferring property which has occupied the attention of the courts and the legislature in late years in a remarkable degree. In a former chapter we touched lightly upon this method of acquiring title to lands by bankruptcy; we there deferred any discussion of details. The title to personal property and to real property under the bankrupt laws stand upon very much the same footing. Therefore the short outline which we purpose to give in this chapter will constitute the completion of the subject which was opened in the former chapter. (413) When we consider persons in reference to their pecuniary contracts which they make with others, we naturally are led to divide them into two main classes those of traders and non-traders - the distinction between which is pretty obvious: even though, in some instances, their pecuniary individuals may occupy a position so near the boundary-line, that it is not easy to determine on which side it lies. In general, however, the division is broad enough. Persons who "buy and sell" and "use the trade of merchandize" clearly are led to contract numerous obligations of a more varied character than other men; such, indeed, as do not naturally arise with other men. When, therefore, we consider these in connection with their state of indebtedness, we are led to regard them with somewhat different ideas from those with which we look upon other persons. If a gentleman, or one in a liberal profession, at the time of contracting his debts, has a sufficient fund to pay them, the delay of payment is a species of dishonesty, and a temporary injustice to his creditor: and if, at such time, he has no sufficient fund, the dishonesty and injustice are the greater. He [* 622] cannot, therefore, murmur, if he suffers the punishment which he has voluntarily drawn upon himself. But in mercantile transactions the case is far otherwise. Trade cannot be carried on without mutual credit on both used by the wife, and suitable to her condition. Though the husband could dispose of them in his life-time, he could not alienate them at his death. The right of the widow to that portion of the estate was absolute and exclusive, except as to creditors. She took it as against the heir or legatee; and in the order of paying the debts of the estate, the personal and then the real estate was applied. For this purpose she might have the assets marshaled in a court of equity, in exoneration of her paraphernalia, or to re-imburse the value where it had been subjected." * * "From these and many other cases it is evident that the widow's paraphernalia could be subjected by the creditors, and that, if subjected, equity gave her a claim of re-imbursement from the personalty and real estate.” * (413) This subject cannot be here discussed at any length, and a general reference to the statutes is all that will be attempted. The Constitution of the United States provides for the enactment of bankrupt laws. The congress shall have power, 營營 to establish * an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States." Art. 1, § 8. Bankrupt laws have been passed as follows: April 4, 1800, repealed December 10, 1803; August 12, 1841, repealed March 3, 1843. The acts now in force, with the amendments, were passed as follows: Act of March 2, 1867, chap. 176 (14 U. S. Stat. at Large, 517-541); Act of July 27, 1868, chap. 258 (15 id. 227, 228); Act of June 30, 1870, chap. 177 (16 id. 173, 174); Act of July 14, 1870, chap. 262 (id. 276); Act of June 8, 1872, chaps. 339, 340 (17 id. 334); Act of February 13, 1873, chap. 135 (id. 436, 437); Act of March 3, 1873, chap. 226, § 4 (id. 485, 509); Act of March 3, 1873, chap. 235 (id. 577). |