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Where Inheritance Indefeasible. While property continued only for life, testaments were useless and unknown, and when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will. It was found that so strict a rule of inheritance, made heirs disobedient, defrauded creditors of their just debts, and prevented fathers from dividing or charging their estates, as the exigencies of their families required.
Introduction of Power to Will. This resulted, in allowing a man to dispose of his property, or at least a part of it, by testament, that is, by written or oral instructions, properly witnessed, according to the pleasure of the testator, which we style his will. In England, until modern times, a man could only dispose of one-third of his movables from his wife and children, and in general no lands were permitted to be devised by will, until the reign of Henry VIII, and then only a certain portion, for it was not until after the restoration, that the power of devising real
property became general. + Origin of Wills. Wills and testaments, rights of inheritance
and succession, are creatures of civil and municipal laws, and regulated by them, every distinct country having its own forms and requisites, to render a will valid; hence the right of inher
itance varies in different countries. 7
English Law of Inheritance. In England, this diversity is most marked. In personal estates, the father may succeed to his children, while in landed estates, he can never be their heir by the remotest possibility. In general, only the oldest son, in some places only the youngest, in others, all the sons together have a right to succeed to the inheritance. In real estate, males are preferred to females, and the eldest male will usually exclude the rest, while in the division of personal estates, females shall share equally with the males, and no right of primogeniture exists.
Who Should Inherit. The law of nature suggests, that upon the death of the possessor, the estate should again become common, and be open to the next occupant, while the municipal law or positive law of society directs it to vest in such person, as
1 By statute of George IV, a lineal ancestor is capable of being heir to his issue, in preference to collaterals.
2 Not applicable to the United States.
the last proprietor shall by will appoint, and in defect of such
, remain in common, being such wherein nothing but an usufructuary property can be had, wherefore they belong only to the first occupant, during his tenure. Such are the elements of light, air and water, which a man may occupy by reason of his windows, gardens or mills; also animals ferae naturae, or of untamable nature, which any man may seize for his own pleasure. All these things, so long as they remain in possession, a man may enjoy, but if they escape him, or if he abandons their use, they return to the common stock, and another man may seize them.
Permanent Property in Other Things. There are other things, in which a permanent property may subsist, not only as to the temporary use, but also the substance, which but for the provisions of the law, might at times be without a proprietor. Such are forests and waste grounds, which were not appropriated in the general distribution of lands, and also wrecks, estrays and wild animals, termed game. The law wisely vests these things in the sovereign, or in his representatives, the lords of manors, thus carrying out the principle of assigning to everything capable of ownership, an owner.
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CHAPTER II.-REAL PROPERTY. CORPOREAL HERED
Division of Things. The objects of property are things as distinguished from persons; and things by the law of England are of two kinds; things real and things personal.
Things Real. These are such as are permanent, fixed and immovable, which cannot be carried out of their place, as lands and tenements.
Things Personal. These are goods, money and all other movables, which may attend the owner's person, wherever he thinks proper to go.
Division. In treating of things real, let us consider:
1. Their several sorts or kinds.
4. The title to them, how acquired and lost.
Things Real. These consist of lands, tenements and hereditaments.
Land. Land comprehends all things of a permanent, substantial nature, being a word of very extensive signification. X Tenement. Tenement is a word of still greater extent, and though usually applied to buildings, yet in its original sense signifies everything that may be holden, provided it be of a permanent nature, whether of a substantial or of an unsubstantial kind. Thus liberum tenementum, frank tenement, applies not only to lands, but also to offices, rents, commons and the like, and as lands and houses are tenements, so is an advowson, or a franchise, an office or a peerage.
Hereditament. Hereditament is by far the most comprehensive term, as it includes not only lands and tenements, but whatsoever may be inherited. Thus an heir-loom, which is a mere movable, may be a hereditament, so also a condition, which is a restriction in a conveyance. Hereditaments are of two kinds, corporeal and incorporeal. Corporeal consist of such as effect the senses, such as may be seen and handled; incorporeal are not the object of sensation, are creatures of the mind, and exist only in contemplation. CORPOREAL HEREDITAMENTS.
Land Defined. This consists wholly of substantial and permanent objects, comprehended under the title of land. Land, says Coke, in its legal sense, comprehends any ground, soil or earth, as arable, meadows, pastures, woods, moors, marshes, heath or waters. Also all castles, houses and other buildings, consisting of land, which is the foundation, and the structure thereon, so that if I convey the land, the building passes with it. One cannot recover possession of a pool of water, but of the land covered by the water. For water is a movable thing, and continues common by the law of nature, hence the property therein is temporary and usufructuary. But the land covered by the water is permanent and fixed, and is a certain, substantial property.
Extent of Landed Rights. Land has an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum is the maxim of the law, hence no man can erect a structure, which shall overhang the land of another. Downwards in a direct line, the owner of the surface owns to the centre of the earth, as is evidenced in the case of mines. Hence land includes not only the face of the earth, but everything under it or over it. If a man grants all his lands, he grants thereby his mines, his woods, his houses and his waters, as well as his fields. Under the name of messuage or castle, nothing but the particular thing mentioned will pass, but under the name of land, which is nomen generalissimum, everything terrestrial will pass.
CHAPTER III.-INCORPOREAL HEREDITAMENTS.
Defined. An incorporeal hereditament is a right issuing out of a thing corporate, whether real or personal, or concerning or annexed to, or exercisable within the same. It is not the thing corporate, which may consist in lands, houses, jewels, or the like, but something collateral thereto, as a rent issuing out of the land or houses, or an office relating to those jewels. Corporate hereditaments are the substance, while incorporeal hereditaments are but a sort of accident, which inhere in and are supported by such substance, and may or may not belong to it, without any visible alteration therein.
Examples. Their existence is merely in idea, though their effects may be frequently objects of our bodily senses. We must not confound together the profits produced and the thing or hereditament, which produces them. An annuity for instance is an incorporeal hereditament, for though the money, which is the product of the annuity, is of a corporeal nature, yet the annuity itself, which produces the money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes are incorporeal, being merely a contingent right, collateral to or issuing out of lands, and hence not the object of sense.
Kinds. Tucorporeal hereditaments are mainly of ten sorts :
Advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities and rents.
1. Advowson. This is the right of presentation to a church or ecclesiastical benefice. Advowson, advocatio, signifies the taking into protection, and is synonomous with patronage, patronatus, and he who has the right of advowson is called the patron of the church. When lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which were before given to the clergy in common, from whence arose the division of parishes, the lord had the right to name such minister. It is not the bodily possession of the church, but it is the right to give some other man a title to such possession.
Divisions. Advowsons are either appendant or in gross. Lords of manors being originally the only founders and patrons of churches, the right of patronage or presentation is termed an advowson, appendant to the manor, and will pass or be conveyed
, together with the manor, as incident thereto. But where the property of the advowson has been separated from the property of the manor by conveyance, it is called an advowson in gross or at large, and becomes annexed to the person of the owner, and not to the manor.
Further Division. Advowsons are either presentative, collative or donative. Presentative, where the patron has the right of presentation to the bishop or ordinary, and to demand of him the appointment of a clerk. Collative, where the bishop and patron are one and the same person, in which case the bishop cannot present to himself. Donative, when the king, or any subject by his license, founds a church, and ordains that it shall be merely in the disposal of the patron, subject to his visitation only, and not to that of the ordinary, and vested absolutely in the clerk, without presentation, institution or induction. As the law now stands, if the true patron once waives this privilege of donation, and presents to the bishop, and his clerk is admitted, the advowson becomes forever presentative, and no longer donative.
2. Tithes. These are the tenth part of the increase, yearly arising from the profits of lands, the stock upon lands, and the personal industry of the inhabitants, or predial, mixed and personal. In general, tithes are to be paid for everything that yields an annual increase, as grain, fruit or cattle, but not for anything