Kent, Vol. II, 386-450. LAW STUDIES. Law Studies. Of the Law Concerning Personal Property.. December, 1890. "Goods and chattels may change owners by act of law, in the cases of forfeit ure, succession, marriage, judgment, insolvency, and intestacy.” Forfeiture of property for treason and felony, part of the common law, and so remains except where changed by constitution or statute. Succession of the government to property where there are no heirs or next of kin. Ownership by judgment of law, raises the question whether a judgment is satisfaction or merely security. (Lacy's Note. "The English doctrine now is that it is not the judgment alone that vests the property in the defendant, but the judgment coupled with the satisfaction thereof, and a number of cases in this country follow out this doctrine.” Insolvency." It has been found necessary, in governments which authorize personal arrest and imprisonment for debt, to interpose and provide relief to the debtor in cases of inevitable misfortune; and this has been particularly the case in respect to insolvent merchants, who are obliged, by the habits, the pursuits, and the enterprising nature of trade, to give and receive credit, and encounter extraordinary hazards. Bankrupt and insolvent laws are intended to secure the application of the effects of the debtor to the payment of his debts, and then to relieve him from the weight of them.” Congress has power to establish a uniform system of bankruptcy throughout the United States. A State has power to pass an insolvent law, but the obligation of contract cannot be impaired by an Act of Congress. Discharge under a State law will not affect a citizen of another State who does not make himself a party to a proceeding under the law. “The municipal law of the State is the law of the contract to be made and executed within the State, and travels with it wherever the parties to it may be found, unless it refers to the law of some other country, or be immoral, or contrary to the policy of the country where it is sought to be enforced. This was deemed to be a principle of universal law; and therefore the discharge of the contract where the contract was made is a discharge everywhere.” Absconding and absent debtors, attachment of their property. Intestacy.—“This is where a person dies leaving personal property undisposed of by will; and in that case the personal estate, after the debts are paid, is distributed to the widow and next of kin." This subject may be considered under three heads. 1. "To whom the administration of such property belongs, and to whom granted." 2. "The power and duty of the administrators; and 3. "The persons who succeed to the personal estate by right of succession." In olden times in England such property went first to the king, afterward to the popish clergy. Parties to whom administration is usually directed. Power and duty of administrator.-Must give bond, file inventory, collect outstanding debts, and pay debts of the estate. General order of payment of debts. Distribution of the personal estate. The English rule prevails in many of our older States, allowing the administrator or executor a year before distributing the estate. Distribution, succession, and disposition of intestate's personal property is governed by the law of the country of the owner or intestate's domicile at the time of his death. Personal property is subject to the law which governs or governed the person of the owner. Debts and personal contracts have no locality. But the law governing the real property, as to tenure, mode of enjoyment, transfer, and descent is that of the place where it is located. Title to personal property by gift.—"The English law does not consider a gift, strictly speaking, in the light of a contract, because it is voluntary, and without consideration; whereas a contract is defined to be an agreement upon sufficient consideration to do or not to do a particular thing. And yet, every gift which is made perfect by delivery, and every grant, are executed contracts; for they are founded on the mutual consent of the parties, in reference to a right or interest passing between them. (The one consents to give, the other consents to take.) Gifts inter vivos, gifts causa mortis. The first have no reference to the future and go into effect at once. Delivery essential in either case. Mere intention without an act to pass, not a gift. Subject of the gift must be certain. The delivery must be actual so far as the subject is capable of delivery. Donor must part with dominion over the subject. A gift perfected by delivery and acceptance irrevocable where there is no fraud. Bonds, bills of exchange, promissory notes and other choses in action are proper subjects of gift in either case; causa mortis ox inter vivos. "By the admirable equity of the civil law, donations causa mortis were not allowed to defeat the just claims of creditors; and they were void as against them even without a fraudulent intent. It is equally the language of the modern civilians that donations cannot be sustained to the prejudice of existing creditors." Questions. 1. In what ways may personal property be transferred by act of law? 2. How is forfeiture and corruption of blood treated under the laws of the United States? 3. What becomes of the property of an intestate (person dying without making a will) without heirs or next of kin? 4. Does a judgment change the property so as to defeat any other remedy before its satisfaction? 5. What is the purpose of bankrupt and insolvent laws? 6. What general principle pervades the English bankrupt system? 7. Is a general bankrupt law an act of national or State legislation? 8. Will the discharge of a bankrupt under a State law discharge a debt due a citizen of another State, and what was decided in the case of Ogden v. Saunders? 9. What passes by the assignment of an insolvent ? 10. How is his property to be distributed among his creditors ? II. In what instances may a debtor's property be attached ? 12. What is meant by intestacy? 13. In granting administration, what is the order of preference among those entitled to act? 14. Under the English law who were considered the nearer if any, parents or children of the intestate? 15. Which does the law prefer in granting of letters ? The student will remember the dis tinction between an administrator and an executor; the latter is appointed by the testator's will and requires no bond, the other appointed by law and required to give bond. 16. Mention some of the duties of administrators and executors? 17. What law governs in the distribution of an intestate's personal property when located in different countries? 18. What law governs real estate as to the measure of distribution and mode of descent ? 19. Have debts and personal contracts any locality? 20. What is essential both in law and equity to the validity of a parol gift of a chattel or chose in action? 21. When does a gift become irrevocable? Leading Questions and Answers. a. (Q.) What is the settled jurisprudence of this country as to the locality of an insolvent's property? (A.) That the lex loci rei sitæ prevails over the law of the domicile with regard to the rule of preferences. The laws of other governments have no force beyond their territorial limits. b. (Q.) Who are intended by the term next of kin? (A.) Under the 22. Into what two classes are gifts rule, the father stands in the first dedivided in law? 23. In which class are they irrevocable? gree, the grandfather and grandson in the second. c. (Q.) When do claimants take 24. In what respect does a gift per sterpes? (A.) Only when they causa mortis resemble a will? 25. Can gifts to the prejudice of existing creditors be sustained? Student's examination of the studies gone over. What have I learned from the sixtysix pages of text taken up by the two chapters considered in this month's study? I. That personal property may be acquired by act of law, by forfeiturejudgment-and insolvency-and by intestacy. From the text I have acquired a general knowledge of these subjects, and have had suggested to me the statutory provisions that I must familiarize myself with in my own State, to make my knowledge practi stand in unequal degrees, or claim by representation, and then the doctrine of representation is necessary. d. (Q.) When do they take per capita ? (A.) When they stand in equal degree, as three brothers, three nephews, for here they take per capita, or each an equal share, because representation is not necessary to prevent the exclusion of those in a remote degree. e. (Q.) What law governs personal property as to the owner's locality? (A.) It is subject to the law that governs the person of the owner. f. (Q.) What is a gift? (A.) It is where a donor irrevocably divests himself of a right to a thing and transfers it gratuitously to another, who accepts it. g. (Q.) What is the special distinction between a gift inter vivos, and a gift causa mortis? (A.) The first goes into effect immediately, the second is conditional upon the donor's death or recovery. Notes, Readings, and References. Insolvency.-Discharge by an insolvent court of one State is no bar to an action by a creditor, who is a citizen of another State, and was not a party to the insolvency proceedings: 28 American Law Register, N. S., 253 (1889). Ogden v. Saunders Reviewed."The only point necessarily decided in the great case of Ogden v. Saunders, 12 Wheaton 213-369, was, that a debtor's discharge under the insolvent laws of one State is not a valid defense to an action brought in the Federal courts by a creditor who is a citizen of another State, and has not voluntarily made himself a party to the insolvency proceedings: 27 American Law Register 611 (1888). Note. In the above case Mr. Webster was one of the counsel for the plaintiff in error, and in his opening stated that "The real question (involved) is—whether the Constitution has not, for general political purposes, ordained that bankrnpt laws should be established only by national authority? We contend that such was the intention of the Constitution; an intention as we think, plainly manifested in several of its provisions." Webster's Great Speeches 178. Lord Hardwicke.· -The frequent mention of the name of this eminent English Chancellor in the text of this month's studies suggests the propriety of giving a brief note of his life and work, gleaned from Campbell's Lives of the Lord Chancellors of England, where he is described by him as "universally and deservedly considered the most consummate judge who ever sat in the Court of Chancery-being distinguished not only for his rapid and satisfactory decision of the causes which came before him, but for the profound and enlightened principles which he laid down, and for perfecting English equity into a symmetrical science." He was born December 1st, 1690, died March 6th, 1764. Leaving school at an early age, we find him at fourteen in an attorney's office, but with an ambition to rise in the world, and by determination and perseverance accomplished it. He acquired a good knowledge of the more popular Roman classics, not remaining satisfied with the merely technical law-Latin encountered in his law studies; and took great pains to acquire a correct English composition. He likewise devoted himself to oratory and acquired that close and self-possessed manner of speaking before the public by which he was distinguished. In acquiring a knowledge of Chancery practice he did not, as many others, rely on Reports and Abridgments, but entered upon a systematic course of study, qualifying judge in the Court of Chancery—tracing him to be a great advocate or a great the equitable jurisdiction of the court to its sources, and thoroughly understanding all the changes it had undergone. He was about twenty-nine years of age when he was appointed Solicitor General, when he had been at the bar only a little more than four years. At the age of forty-six he was appointed Lord Chancellor. "We now see him in his glory as an Equity Judge. Viewed as a magistrate sitting on his tribunal to administer justice, I believe that his fame has not been exceeded by that of any man in ancient or modern times; and the long series of enlightened rules laid down by him having, from their wisdom, been recognized as binding by all who have succeeded him, he may be considered a great legislator. His decisions have been, and ever will continue to be appealed to as fixing the limits and establishing the principles of that vast judicial system called Equity, which now, not only in this country and in our colonies, but over the whole extent of the United States of America, regulates property and personal rights more than the ancient Common Law. "The student animated by a generous ambition, will be eager to know where this great excellence arose? Like everything else that is valuable, it was the result of earnest and persevering labor A complete knowledge of the common law was the foundation on which he built. * * * Having bestowed unremitting power in qualifying himself for the discharge of his high duties, when occupying the judgment seat, exhibited a pattern of all judicial excellence. Spotless purity-not only an abstinence from bribery and corruption, but freedom from undue influence, and a hearty desire to do justice. * * * He never attempted to show his quickness, by guessing at facts, or anticipating authorities which he expected to be cited. Not ignorant that the Chancellor can always convulse the bar with 'counterfeited glee,' he abstained from illtimed jocularity, and he did not hurl sarcasms at those who, he knew, could not retort upon him. The arguments being finished, if the case seemed clear, and did not involve any new question, he immediately disposed of it. His judgments are praised for their deservedly luminous method in the arrangement of the topics, and elegant perspicuity of language in the discussion of them."Lives of the Lord Chancellors, Vol. vi, page 73, etc. Review of the Year's Work. With the present number the year's work on Law Studies closes. And excepting the first chapter in Part IV the student has gone over the law concerning" The Rights of Persons,” treating of the law of Aliens and Natives. Husband and Wife. Master and Servant. Also of the "Law Concerning Personal Property" comprised in Part V, those branches treating of the History, Progress, and Absolute Rights of Property. The Nature and various kinds of Personal Property. Title to Personal Property by Original Acquisition. Title to Personal Property by Transfer by Act of Law. Title to Personal Property by Gift. Whatever help the student may have derived from reading Kent in course on the above subjects, the main purpose of our plan of work will have been accomplished, if, in the course of his general legal studies, he has been prompted to closer application to standard text-book study in laying the foundation of his legal education. T. ELLIOTT PATTERSON. |