The general doctrine is established by numerous English equity decisions, (e) and it has been very extensively recognized and

adopted as the existing rule of law in this country; but not * 353 until the questions had been very ably* and thoroughly discussed, particularly in the Supreme Court of Errors of the state of Connecticut. (a)

There is an exception to the rule in the case of a bequest of specific things, as, for instance, corn, hay, and fruits, of which the use consists in the consumption. The gift of such articles for life is, in most cases, of necessity, a gift of the absolute property; for

(e) Smith v. Clever, 2 Vern. 59. Hyde v. Parrat, 1 P. Wms. 1. Tissen v. Tissen, Ibid. 500. Pleydell v. Pleydell, Ibid. 748. Porter v. Tournay, 3 Vesey, 311. Randall v. Russell, 3 Meriv. 190.

(a) Moffat v. Strong, 10 Johns. 12. Westcott v. Cady, 5 Johns. Ch. 334. Griggs v. Dodge, 2 Day, 28. Taber v. Packwood, Ibid. 52. Scott v. Price, 2 Serg. & Rawle, 59. Deihl v. King, 6 Ibid. 29. Royal v. Eppes, 2 Munf. 479. Mortimer v. Moffatt, 4 Hen. & Munf. 503. Logan v. Ladson, 1 Desaus. 271. Geiger v. Brown, 4 M'Cord, 427. Brummet v. Barber, 2 Hill (S. C.) 543. By the N. Y. Revised Statutes, vol. i. p. 773, sec. 1-5, the absolute ownership of personal property cannot be suspended by any limitation or condition for a longer period than two lives in being at the date of the instrument creating it, or if by will, in being at the death of the testator. The accumulation of the interest or profits of personal property may be made as aforesaid, to commence from the date of the instrument, or from the death of the person executing the same, for the benefit of one or more minors then in being, and to terminate at the expiration of their minority; and if directed to commence at a period subsequent to the date of the instrument or death of the person executing it, the period must be during the minority of the persons to be benefited, and terminate at the expiration of their minority. All directions for accumulation contrary hereto are void; and for a longer term than such minority, are void as to the excess of time. But if a minor, for whose benefit a valid accumulation of interests or profits is directed, be destitute, the chancellor may apply a suitable sum from the accumulated moneys for his relief, as to support or education. See infra, vol. iv. p. 286, the regulation of the accumulation of the income of real estates; and see Vail v. Vail, 4 Paige, 317, where it was held, that if the trust of accumulation of income of personal estate be void under the statute, such income goes as unbequeathed property. Whenever the proceeds of personal property are not validly disposed of by the testator, they are to be distributed, as of course, to the widow and next of kin. The N. Y. Revised Statutes have not defined the objects for which express trusts of personal estate may be created, as has been the case in relation to trusts of real estate. (Infra, vol. iv. 310.) They may, therefore, be created for any purposes which are not illegal; and except as to the mere vesting of the legal title to the property in the trustee, instead of the cestui que trust, the conveyance or beques. of personal property is governed by the same rules applicable to a grant or devise of a

1 The direction to accumulate is simply roid, and it does not invalidate any other pro visions of the will unless it also creates an illegal suspension of the power of alienation. Johnson v. Kilpatrick, 15 N. Y. 322. Williams v. Williams, 8 N. Y. 525. Dodge v. Pond,

23 N. Y. 69.

the use and the property cannot exist separately. (b) If not specifically given, but generally as goods and chattels with remainder over, the tenant for life is bound to convert them into money, and save the principal for the remainder-man. (c) It is a general

similar interest in real property. The Revised Statutes, vol. i. 773, tit. 4, restrict, as above stated, the power of suspending the right of alienation of personal property, and the right of accumulation within similar limits. Gott v. Cook, 7 Paige, 534-5. In all other respects limitations of future or contingent personal estates are the same as if the subject was real estate. Hone v. Van Schaick, 7 Paige, 222. Kane v. Gott, 24 Wendell, 641. The N. Y. R. Statutes, concerning uses and trusts, are confined to real property. They do not interfere with the mere appropriation of the fund as to personal property, and only as to limitations of future or contingent interest therein; for if the limitation be on a contingency, it must be confined within certain boundaries of time, otherwise you run into an objectionable perpetuity. The rules of real property are not impressed upon personal property, except as to future contingent limitations. See the remarks of Mr. Justice Cowen on this subject in Kane v. Gott, ut sup. pp. 662, 663, 666. If personal estate be vested in trustees upon various trusts, some being valid and others void, the court will sustain the valid ones if they can be separated from those which are illegal. Van Vechten v. Van Vechten, 8 Paige, 105.

The testator may direct the payment of legacies out of the income of the estate by anticipation. He may bequeath the same as a future estate undiminished in amount, subject to the rules against perpetuities. He may carve such intermediate interests, estates, and portions out of the income, in the mean time, as he pleases, if it can be done without any actual accumulation of the rents and profits for that purpose. But an accumulation of rents and profits for the purpose of raising a legacy or portion at a future day, is not permitted in New York, except such legacy or portion be for the sole benefit of a minor in existence when the accumulation commences. N. Y. R. S. vol. i. p. 726, secs. 37, 38. Ibid. 773, secs. 3, 4.

(b) Randall v. Russell, 3 Meriv. 194. Evans v. Iglehart, 6 Gill & Johns. 171. Henderson v. Vaulx, 10 Yerger, 30. If the specific personal property bequeathed for life, with remainder over, be capable of increase, as cattle, &c., the tenant for life, taking the increase to himself, is bound to keep up the number of the original stock. 1 Domat, b. 1, tit. 11, sec. 5. But if the animals do not produce young ones, the tenant for life, called the usufructuary in the civil law, is not bound to supply the place of those that die without his fault. Ibid. sec. 6. In the southern states slaves may be bequeathed for life and remainder over, and the tenant for life is bound in equity to account for them. Horry v. Glover, 2 Hill (S. C.) Ch. 520. Though property be of a perishable nature, it may, when the case will admit of it, be bequeathed to A. for life, with remainder over; but as such property becomes less valuable, from year to year, it may, under the direction of chancery, be converted into government stock, for the protection of the remainder man. 4 Russell, 200.2

(c) Patterson v. Devlin, 1 M'Mullan (S. C.) 459. The rights of the tenant for life and of the remainder-man, in perishable articles, and in other things which deteriorate or wear out by use and time, are discussed at large in that case, and many illustrations given and distinctions stated.

2 A purchaser from tenant for life of a slave may be compelled in equity to secure the rights of those in remainder. Gill v. Tittle, 14 Ala. 528. Frazer v Bevill, 11 Gratt 9.

principle, that where any interest short of absolute ownership is given in the general residue of personal estate, terms for years and other perishable funds of property which may be consumed. in the use, are to be converted or invested, so as to produce a permanent capital, and the income thereof only is to go to the residuary legatee. (d) 1 There cannot be any estate tail in a chattel interest, unless in very special cases, for that would lead to a perpetuity, and no remainder over can be permitted on such a limitation. (e) It is a settled rule that the same words which * 354 under the English law would create * an estate tail as to freeholds, give the absolute interest as to chattels. (a) The interest of the party in remainder in chattels is precarious, because another has an interest in possession; and chattels, by their very nature, are exposed to abuse, loss, and destruction. (b) It was understood to be the old rule in chancery, (c) that the person entitled in remainder could call for security from the tenant for life, that the property should be forthcoming at his decease, for equity regards the tenant for life as a trustee for the remainder-man; but that practice has been overruled. (d)1 Lord Thurlow said that the party entitled in remainder could call for the exhibition of an inventory of the property, and which must be signed by the legatee for life, and deposited in court, and that is all he is ordinarily entitled to. (e) But it is admitted that

Fearns v. Young, 9 Ibid. 549.

(d) Howe v. Earl of Dartmouth, 7 Vesey, 137. (e) Dyer, 7, pl. 8. 2 Blacks. Com. 398. (a) Seale v. Seale, 1 P. Wms. 290. Chandless v. Price, 3 Vesey, 99. Brouncker v. Bagot, 1 Meriv. 271. Tothill v. Pitt, 1 Mad. Ch. 488. Garth v. Baldwin, 2 Vesey, 646. Jackson v. Bull, 10 Johns. 19. Patterson v. Ellis, 11 Wendell, 259. Moody v. Walker, 3 Ark. 147.

(b) The interest in remainder in a chattel was held, in Allen v. Scurry, 1 Yerger (Tenn.) 36, not to be the subject of sale on fi. fa., for no delivery could be made by the sheriff. The remainder of a term in a live chattel was a contingent interest.

(c) 2 Freeman, 206, case 280. Bracken v. Bentley, 1 Rep. in Chancery, 59. (d) Foley v. Burnell, 1 Bro. C. C. 279. Sutton v. Craddock, 1 Ired. Eq. (N. C.) 134. (e) The rule in New York, as declared in De Peyster v. Clendinning, 8 Paige, 295, is in the case of a specific bequest for the legatee to give to the personal representative of the testator an inventory of the articles bequeathed, stating his possession of them, and that when his interest expires they are to be delivered up.

1 The rule gives away before an expressed intention of testator, that the property shall be enjoyed in specie. Morgan v. Morgan, 7 Eng. L. & Eq. 216. Smith v. Barham, 2 Dev. Eq. 420. Jones v. Simmons, 7 Ired. Eq. (N. C.) 178. And where the property is given by the executor to the tenant for life, and by him consumed, either the executor of the testator or of the tenant for life may be held responsible. Ib.

1 See, however, Miller v. Williamson, 5 Md. 219; Roberts v. Stoner, 18 Mo. 481; Nance

security may still be required in a case of real danger, that the property may be wasted, secreted, or removed. (f) And where there is a general bequest of a residue for life, with remainder over, the practice now is, to have the property sold and converted into money by the executor, and the proceeds safely invested, and the interest thereof paid to the legatee for life. (g)

(ƒ) Fearne on Executory Devises, vol. ii. p. 53, 4th edit. by Powell. Mortimer v. Moffat, 4 Hen. & Munf. 503. Gardner v. Harden, 2 M'Cord Ch. 32. Smith v. Daniel, Ibid. 143. Merril v. Johnson, 1 Yerger (Tenn.) 71. 1 Hill Ch. (S. C.) 44, 74, 137, 157. Henderson v. Vaulx, 10 Yerger, 30. Hudson v. Wadsworth, 8 Conn. 348. Langworthy v. Chadwick, 13 Ibid. 42. Homer v. Shelton, 2 Metcalf, 194. In Georgia, the person entitled in remainder or reversion of personal Property may have a writ of ne exeat in such cases. Prince's Dig. 1837, p. 469.

(g) Howe v. Earl of Dartmouth, 7 Vesey, 137. But in the case of a bequest of specific chattels to A. for life, with remainder over, the legatee for life is entitled to the possession and enjoyment of the chattel, and not to have it sold by the executors, and the proceeds invested for his use, unless the will directs it. He is entitled to the increase and income of it from the testator's death. If, however, the property bequeathed would be of no use unless converted into cash, in that case a safe investment ought to be made by the executor, for the benefit of the parties in interest respectively. Evans v. Iglehart, 6 Gill & Johns. 171. De Peyster v. Clendinning, 8 Paige, 295. But in the case of a female slave bequeathed to A. for life, and then to B., her issue born during the lifeestate goes to the ultimate legatee. Covington v. McEntire, 2 Ired. Eq. 316. In Pennsylvania, by Act of 24th February, 1834, security is to be given in all cases, under the direction of the Orphan's Court, where personal property is bequeathed for life only.

v. Coxe, 16 Ala. 125. Where the tenant for life had been missing fourteen years, the court could only give the interest to those in remainder, requiring an undertaking from them to account to the tenant for life if he should appear. In re Mileham's Trust, 21 Eng. L. & Eq. 550.

37 #

LECTURE XXXVI.

OF TITLE TO PERSONAL PROPERTY BY ORIGINAL ACQUISITION.

TITLE to personal property may accrue in three different ways: :

I. By original acquisition.

II. By transfer, by act of the law.

III. By transfer, by act of the parties.

The right of original acquisition may be comprehended under the heads of occupancy, accession, and intellectual labor.

I. Of original acquisition by occupancy.

The means of acquiring personal property by occupancy are very limited. Though priority of occupancy was the foundation of the right of property, in the primitive ages, and though some

*

of the ancient institutions contemplated the right of occu*356 pancy as standing on broad ground, (a) yet, in the progress of society, this original right was made to yield to the stronger claims of order and tranquillity. Title by occupancy is become almost extinct, under civilized governments, and it is permitted to exist only in those few special cases in which it may be consistent with the public welfare.

(1.) Goods taken by capture in war were, by the common law, adjudged to belong to the captor. (a) But now, by the acknowledged law of nations, and the admiralty jurisprudence of the United States, as has been already shown, (b) goods taken from

(a) Quod ante nullius est, id naturali ratione occupanti conceditur. Inst. 2, 1, 12. Mr. Selden has shown that among the ancient Hebrews, fruits, fish, animals, and everything found in desert or vacant places, belonged to the first occupant. De Jur. Nat. et Gent. juxta disciplinam Ebræorum, cited by Puff. b. 4, ch. 6, sec. 5.

(a) Finch's Law, 28, 178. Bro. tit. Property, pl. 18, 38. Wright J., in Morrough v Comyns, 1 Wils. 211.

(b) See vol. i. p. 10).