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Ancient Laws as to Descent-Primogeniture.

174

descended if he aliened them (§ 6), and the real estate of traders was made liable for debts by simple contract, that is, on obligations not under seal (§ 9). At length by stat. 3 & 4 Will. IV. c. 104 (29 Aug. 1833), freehold and copyhold estates of deceased persons have been made liable in all cases for the payment of debts by simple contract as well as by specialty, but to be administered by the Court of Chancery; indeed almost every description of property has been made lia- [175] ble to satisfy creditors, as will be more fully noticed hereafter.

Having shortly traced the common law as regards the several kinds. of estates, the interests that may be carved out of them, the power of alienation, and the modes by which it is exercised; it remains to consider what was the disposition made by the common law in regard to inheritable estates, corporeal and incorporeal, on the death of the owner. It has been already noticed, that as far as can be ascertained, the custom of Kent in regard to lands held on that species of socage tenure called Gavelkind, by which sons are preferred to daughters, and brothers to sisters, but all sons or all daughters taking equally (a), represents the general law of descent as it stood at the Conquest as regards allodial lands, or lands to which a person was entitled absolutely, and not coming to him by way of benefice, or in any way by which any particular heirs or takers were marked out. By the code of Will. I., § 36 (b), which, as we have seen, was chiefly compiled from the code of Canute, the inheritance of a person dying intestate, was to be divided between all his children equally, making no distinction in terms between movables and immovables, males and females; this is remarkable, but it is possible that this section was intended only to have applied to lands held in socage tenure, not to lands held on military service or feuds (c). The charter of William (d), which was subsequently issued, simply declared that every one should hold his lands in hereditary right; it was silent as to who were to take as heirs.

In the treatise, called the Laws of Henry I. the doctrine, and almost the words of the Code of the Ripuarians as to the descent of allodial land, postponing females to males (e), is adopted; but it is coupled with a direction that the capital fief of the father should go to the eldest son. This is the first notice of the English doctrine of primogeniture (f).

In the reign of Henry II. the eldest son was sole heir of lands held "on military tenure (g), though lands held by free socage tenure still descended to all the sons equally, unless in places where, [176] by established custom, the eldest, or the youngest as was the case as to lands held in Borough English, took the inheritance (h).

(a) Com. Dig. tit. Gavelkind, iv. 290. (b) It is, as before observed, very much to be doubted whether this code ever had the force of law.

(c) V. supra, p. 90.

(d) V. sup. p. 90, note (c).

(e) This was the almost universal rule in the continental states, Allen, xxxix.

(f) Leg. Hen. I. c. 70. The Assizes of Jerusalem had, on feudal principles, established primogeniture to a certain extent.

Barrett's Introduction to the Code Napol.
p. cccxxix. & xxx. From the Grand Cus-
tumier of Normandy, primogeniture would
appear to have prevailed there also, at least
when that work was compiled. However,
according to the Book of Feuds, all the sons
inherited the fiefs of their ancestor equally,
lib. i. tit. 1, § 1.

(g) Glanville, vii. c. 3.
(h) Ibid. vii. c. 3.

176

Descent of Lands in Gavelkind and Borough English.

If there were daughters only, whether the lands were held on military or socage tenure, the daughters took the entire inheritance, as heirs in coparcenary. The eldest daughter was entitled to the capital mansion as part of her share, and her husband did homage for the whole, as has been noticed in a preceding page. By the customs of some cities and boroughs the inheritance descended to males and females in the same degree equally (a).

In default of children, brothers and sisters, females taking equally, and after them those in the nearest degree, succeeded, males of the same degree being preferred to females, unless where special customs prevailed. The direct line was preferred to collateral lines, and the paternal to the maternal (b). The general rule was that land could not ascend (c). In the time of Hen. III., or soon afterwards, primogeniture prevailed generally as regards socage lands as well as those held on military service, and the rules of descent as they now stand were for the most part settled, both as regards the general rules of descent, (the leading features of which were such as are above described,) and its exceptions (d).

By the stat. 3 & 4 Will. IV. c. 106, the direct lineal ancestors may now inherit in preference to collaterals, and the half blood may inherit next after the whole blood and their issue (e).

The exceptions to the general rule of descent, which are above referred to, relate principally to lands held in gavelkind and borough English. In regard to lands in Kent, where alone gavelkind existed of common right, as respects males, partition amongst all of equal degree was and still is the rule, as the right by primogeniture is the rule elsewhere (ƒ). The custom of Borough English belongs to *burgage tenure (g). [*177] Lands held in borough English descend to the youngest son; and this is so far the known law that it is sufficient in pleading to state that the lands are of borough English without prescribing as to the custom. The ancient custom as to the descent of gavelkind lands was preserved in other parts of England besides Kent, and in Wales, but as to them it was necessary in pleading to allege the custom specially and by consequence to prove it in each particular case (h). By the stat. 34 & 35 Hen. VIII. c. 26, gavelkind descent of lands in Wales was expressly

(a) Glanville, vii. c. 3.

(b) Ibid. vii. c. 3, 4; ib. c. 4.

(c) Nunquam autem naturaliter ascendit, Glanville, vii. c. 1; "descendit-quasi ponderosum quid deorsum," Bracton, 62 b; but this only applied to immediate devolution, Bract. ubi sup., and Beames's note, p. 148, to his edition of Glanville.

(d) Butler's note, Co. Litt. 191 a, vi. 4; they are enumerated, Bract. lib. ii. c. 31 &

32.

(e) The canons of descent, as fixed by the modern statute, may be seen in Sweet's Blackstone, ii. p. 240, et seq.; and Hayes, i. 576. For a full and complete exposition of the law I would also refer to Mr. Shelford's valuable treatise, p. 426, et seq., where the objects of the Act 3 & 4 Will. IV. c. 106 are pointed out, and there is a full ex

The

planation of the law of descent as it stood before the Act and as it now stands. material parts of the very able Report of the Real Property Commissioners, on which the Act was founded, are there inserted, a perasal of which will familiarize the student with the subject.

(f) Comyn's Dig. Gavelkind, A. iv. 290, 4th ed. The sons, as before observed, were coparceners by custom.

(g) Litt. § 211. It could only be alleged as of cities and boroughs, Co. Litt. 110 b.

(h) Litt. § 265; Co. Litt. 175 b, and the notes. In all collateral customs claimed to be incident to gavelkind lands, as to devise and the like, it was also necessary to plead and establish the custom, Com. Dig. Gavelkind, A. iv. p. 292.

Reverter and Escheat-Inquest of Office.

177

taken away, and much of the land in Kent has been disgaveled by particular statutes.

It remains only shortly to advert to Reverter and Escheat.

If there were no heirs, so that the gift was spent-for, as we have seen, every holding implied an original gift, and there could be no gift. beyond one to a man and his heirs, general or special-the land, unless aliened, reverted to the lord: this right, by the name of a Reversion, has before been noticed under the head of Expectant Estates. Indeed, in whatever way the inheritance might become vacant, whether by reason of there being no heir in nature, or no heir answering the description in the grant (a), or by the actual tenant or owner becoming an outlaw, or being convicted of felony, which prevented the transmission through him of inheritable blood (b), the lord was entitled to take the lands into his hands, whoever such lord might be, whether the king or any other person, by a right designated as that of Reverter or Escheat (c). According to the language of Glanville, the lord was ultimate heir (d), the king being heir of all. Bracton classes the lord amongst those whom he designates quasi hæredes (e)—that is, persons *who did not acquire their interest by succession from the person who was last [*178] seised but by independent title, or, as we now say, as purchasers (f).

In order to ascertain whether lands had escheated to the crown, a similar course of proceeding was adopted by the Anglo-Normans, and which has been continued to the present time, as had been prescribed by the Emperor Constans in order to ascertain whether any particular lands had escheated to the imperial fisc; namely, by an inquisition or Inquest of Office (g) taken on oath by a certain number of persons summoned for that purpose before the king's officers (h).

(a) Bracton, fo. 23, "de quibus nulla fit mentio in donatione."

(b) Corruption of blood is almost entirely abolished, see 54 Geo. III. c. 145; 3 & 4 Will. IV. c. 106, § 10. There is a particular statute relating to the escheat of trusts or mortgage estates, 4 & 5 Will. IV. c. 23, which will be noticed in a subsequent part of this work.

(c) Glanville, vii. c. 7, p. 188-9, ed. Beames; Bracton, fo. 23, to same effect. (d) Glanville, vii. c. 17.

In the comparatively recent case of Burgess v. Wheate, 1 Eden's Reports, where lands were vested in trustees, and the line of persons for whom they were trustees had become extinct, the title of the crown was rested solely on the doctrine of reverter or escheat, which failed, as the trustees were seised of the legal estate; whereas the prerogative title to things of which there is no owner would have afforded, as Mr. Butler has observed, (Note to Co. Litt. 191 a,) a much better ground for the claim of the crown;-as regards forfeiture, escheat certainly operates in subordination to the more

ancient and superior law. But the law as regards the case of failure of heirs to a trust estate is settled, and in a way that no subject will regret, Henchman v. Attorney-General, 3 My. & K. 494; Taylor v. Haygarth, before the V. C. of E., Jurist, 1844, viii. p. 138.

(e) Bracton, fo. 23.

But the lord was bound to warrant the acts of the felon done previous to the felony committed, Bracton, fo. 23. (g) See Duck. p. xvii.

(h) See Cod. Theod. x. 9, l. 11 and 13; Inquiry into the Origin of the Laws of Modern Europe, p. 37; 3 Bla. Comm. 358; and see Palg. Rise, &c., 273-4. Sir Francis attributes important consequences to this institution as a check on royal rapacity in early times. If we may judge from the language of the imperial edicts, the Roman provin cials had all the benefits of this institution. By the 33d Hen. VIII. c. 20. § 2, the lands of persons attainted of treason go to the crown, without office found. See Lewin, on Trusts, 557.

178 Commutation of Manorial Rights.-Personal Property.

ADDITIONAL NOTE TO CHAPTER IV., p. 146, 147.

The modern Acts in regard to Copyholds partially carry out the recommendations of the Real Property Commissioners in their first and third Report. The first Act was passed in 1842 (1); it is entitled "An Act for the Commutation of certain Manorial Rights in respect of Lands of Copyhold and Customary Tenure, and in respect of other Lands subject to such Rights, and for facilitating the Enfranchisement of such Tenure," which Act was amended and explained by an Act of the 6 & 7 Vict. c. 23, and the provisions of those Acts were extended and explained by an Act of the 7 & 8 Vict. c. 55 (1844). The substance of those Acts is as follows:-A Standing Commission, composed of three Commissioners, entitled "The Copyhold Commission," is appointed to carry the Act into execution. Rents, fines, heriots, and rights as to timber may be commuted for corn rents, fixed fines, or for pieces of land, leaving the copyhold tenure in other respects undisturbed. If three-fourths of the tenants of a manor in number and value shall agree upon a commutation with the lord, they may bind the remaining fourth, but the lord can in no case be bound to commute. Besides this, purely voluntary commutations, made between the lord and any one or more tenants of the manor, may be established. Enfranchisements of copyhold and customary lands may also be effected under these Acts; they refer to voluntary enfranchisements only, which may be either general or partial, or individual. Some alterations are also made by the stat. 4 & 5 Vict. c. 35, so as to facilitate the alienation of copyhold lands (2).

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Personal Property, why so called-Goods and Chattels, terms of Art for Personal EstateChattels, Real and Personal-Goods, in Possession and in Action-Choses in Action described-Right of Action for Damages on Contracts express and implied-for Damages in respect of Wrongs or Injuries-Copyright-Patent Rights.

Joint Tenancy and Tenancy in Common, in Personal Property.

Alienation of Personal Property Gifts-necessity for Delivery of the Thing or of Deed of Gift-Statutes of 13 & 29 Eliz. against fraudulent Gifts of Land, &c.; and of Goods and Chattels to defraud or hinder Creditors.

Contracts What Contracts or Agreements are binding at Law—consideration necessary— Promissory Notes and Bills of Exchange.

Power of Devising or Bequeathing Personal Estate-not interfered with at the Norman Conquest-Rationabilis Pars secured for Wife and Children-Customs preserved in London and Province of York-The Office of Executor-Resemblance to the Hares of Roman Law-The Office of Administrator.

Duties of Executors and Administrators in respect of the Goods and Chattels of the Testator or Intestate which devolve upon them-Devastavit on the part of the Executor or Administrator-by direct Abuse and by negligence-in case of inevitable accident-Legal Order in which Debts are to be Paid-Right of Retainer by Executor and Administrator. Limitations of Chattel Interests, and of Estates pur autre vie-Entails.

Donations mortis causa.

Distribution of Personal Estate on Intestacy.

PERSONAL property is so called because, generally speaking, it may

Goods and Chattels-Personal and Real-Choses in Action. 179

attend a man's person wherever he goes (a)—a circumstance which has produced an important effect in regard to succession, namely, that the title to personal property by succession shall be determined by the law of the domicile of the deceased owner (b). Goods and Chattels are the terms of art used at the common law to designate personal estate; the idea of movables, though used by our earliest writers, as Glanville and Bracton, was not found to be sufficiently comprehensive to take in everything that the law considered to be a chattel interest. Goods and chattels are either personal or real. Horses and such-like are personal. Real are so called, as being interests issuing out of or *annexed to real estates, of which they have one quality, viz., immobility, but [180] they want the other, viz., a sufficient legal indeterminate duration. Such are terms for years in lands and tenements, the interests of tenant by statute staple, statute merchant, and by elegit, each of which has been already noticed; such is also the grant of the next presentation to a church. No estate of inheritance can at common law be comprehended under the words goods and chattels (c). Heirlooms, which will be spoken of hereafter, are by custom, not by common law (d).

Another division of goods is into those which are in possession, that is, where a man has the right and the possession; and those which are in action (e). Choses in action are the terms of art used to designate property of the latter description, namely, where a person has not the possession, but a bare right to occupy or obtain possession of the thing, to be rendered effectual by a suit or action at law. Marriage, it is observed, is a gift to the husband of all the chattels personal of his wife, absolutely; it is also a gift to him of her chattels real, as leases for years, &c., but conditionally only that he happen to survive her; but he has an absolute power to alien these also (f), and the husband's right in his wife's term for years will pass by a grant of all his goods and chattels (g): the wife's choses in action will survive to her unless he reduce them into possession. A right of action may arise upon the breach of an express contract to pay a stated sum (h), as on a bond in a penalty; or upon the breach of an implied contract (i), that is, by reason of a person not having done that which (in judgment of law) reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform; the recompense for the damage occasioned in each case is a chose in action (k). Sir William Blackstone classes under choses in action upon implied contracts the recompense which is recoverable upon the breach of an express contract to do a particular thing, inasmuch as it is by conclusion of law that he is bound to pay to the other so much in damages, to be assessed by a jury, as may compensate for the breach (1). A right of action for the

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(f) Co. Litt. 300 a, 351 a.

(g) Com. Dig. Biens, D 2.

(h) Ex contractu, v. Just. Inst. iii. 14. 2; and Bracton, 99 a.

(i) Quasi ex contractu, v. Just. Inst. iii. 14. 2; and Bract. ubi sup.

(k) 2 Bla. Comm. 443, et seq.

(1)2 Bla. Comm. 397. "Bene permittitur Judici," says Bracton, “ex officio suo summam quam quærens æstimavit (cum agitur ex injuria moderare et minuere non autem augere," Bract. iii. tr. 1, c. 1, 98 b. This

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