CHAP. III. 1. RIGHTS express law regarding death-bed gifts, and in general denying effect to the same. Such a donation in England was subjected PERSONALTY. to the legacy duty by the express terms of 36 Geo. 3, c. 52, s.7. TO By grant, or assignment, and bill of sale. ation. Ninthly, is enumerated title by Grant as distinguished from gift, though that term is now usually confined to a transfer of some easement relating to land, as a grant of a right of way or a right of common; and the term assignment or bill of sale, is usually adopted when speaking of a transfer of personalty. It is always supposed to be founded on some adequate considerA grant, or more properly an assignment, when confined to personalty, and not a chattel real, may be by parol. (q) And an assignment of a chose in action need not be by deed,(r) and an equitable assignment of a debt may be by simple writing, or by word as well as by deed. (s) In order to constitute even an equitable assignment, there must be an engagement to pay out of the particular fund, or appropriate words transferring it, inserted in the letter or other instrument, for otherwise, though the intention might readily be supposed, even a Court of Equity cannot supply the omission. (t) A lien upon personal property may be effectually created by parol, and by a mere deposit of the same, or the security relating to a chose in action, though it is essential to perfect the transfer of the latter, at least as against creditors, by giving immediate notice to the parties to the chose in action or contract. (u) But when a transfer is to be made of personal property of considerable value, as a security for or in satisfaction of a bona fide debt, it is safer and more usual to make it in writing reciting the consideration, and enumerating every particular article in a schedule, after having the same duly valued by disinterested and competent persons. A bill of sale or assignment does not, at least as against creditors, pass any after-acquired personal property, (v) though it may pass any subsequently purchased property intended to be annexed to or go with the principal, as a new rudder or boat of a ship; (x) and where there has been material reparation, or even subsequent changes and substitutions of new articles for old, the former may pass. It requires express words to pass a contingent interest in personal property, and where a person entitled to such an interest assigned "all her (q) 3 M. & S. 7. An assignment of a lease must be in writing, 29 Car. 2, c. 3, s. 4. (r) Howell v. M'Ivers, 4 T. R. 690. Russ. & Myl. 602, 603, very illustrative of this position. (u) 2 Simons, 257, 570; 3 Russ. R. 12, 13. (v) 5 Taunt. 212. (r) 5 B. & Ald. 918. furniture, plate, &c. and all other the estate and effects of or to which she was then possessed or entitled, to trustees upon trust for creditors," it was held, that such assignment did not pass her then contingent interest in a testator's residuary estate, (y) and it should seem, that an assignment merely of a copyright, without other express words, would not pass the contingent interest of an author, upon his surviving twenty-eight years from the time of the first publication of his work. (z) And though in case of personalty an assignment may in general be by parol, it is otherwise as respects a lease or other interest in land, the statute against frauds requiring an instrument in writing, and signed; (a) and the transfer of a copyright should regularly be in writing and attested by two witnesses, though sometimes such a regular assignment will be presumed. (b) In order to perfect the grant, bill of sale or assignment, the assignee should immediately take possession of the goods, and not suffer any continued, even partial or concurrent, possession by the assignor or his family, or the transfer would be void against creditors ignorant of or not concurring in the transfer, (c) unless in some cases of notoriety of the change of ownership under an execution or otherwise; (d) or where the right to take possession was only in future or contingent, in which case it suffices to take possession immediately the event has happened, though in the mean time creditors may have been misled by the possession having remained in the mortgagor, it being settled that there is no fraud in allowing a continued possession, when consistent with the terms of the deed. (e) If the property assigned be at a distance, as a ship at sea, and cannot be immediately delivered, then possession must be taken of all documents relating thereto, and the transfer be duly registered, and the earliest notice of the transfer forwarded to the party in actual possession; and in the case of a written security, or chose in action, or policy of insurance, not only must possession be taken of the security, but notice of the transfer must be given to the debtor or contracting party, (f) for other (9) Pope v. Whitcombe, 3 Russ. R. 124. The words of the transfer, to cover any contingency, should be, "and all other rights, titles, interests, trust, property, possession, expectancy, possibility, benefit, advantage, claim and demand whatsoever, at law and in equity, or otherwise howso ever, of the said A. B. of, in, to, or out of or upon the said [naming the thing transferred, and adding express words adverting to the supposed contingencies]." (1) 54 Geo. 3, c. 156, s. 8, 9; 2 Stark. R. 385. Quare, if the benefit of survivorship should not be expressly assigned. (a) 29 Car. 2, c. 3, s. 4. (b) 8 Aun. c. 19, s. 1; 41 Geo. S, c. 107; 3 M. & S. 7; 2 Bar. & C. 866; 2 Stark. R. 382; 4 Campb. 9; 1 Jac. & W. 481. (c) Twyne's case, 3 Coke, 81; 1 Campb. (d) 2 Bos. & Pul. 59; 8 Taunt. 838. (f) 2 Simons, 257, 570, and cases CHAP. III. I. RIGHTS ΤΟ PERSONALTY. CHAP. III. I. RIGHTS ΤΟ wise, at least in case of the bankruptcy of the transferor, his assignees will be entitled to the property; (g) and the same PERSONALTY. doctrine applies to the assignment of a post obit bond, or of a policy of insurance, of which notice should be immediately given to the insurer: (h) A voluntary settlement or assignment of personal property, made by a person who was not indebted at the time, is valid and sufficient against a subsequent purchaser for valuable consideration. (¿) By Contract. By Bankruptcy. By Insolvent By Administration. (m) Tenthly. Title by Contract being by far the most important of all the means of acquiring a title to or interest in personalty, will be presently distinctly considered. Eleventhly. Title by Bankruptcy is now simplified and founded on two explicit modern acts.(k) Twelfthly. The Rights of the Assignee of an Insolvent Debtor and his Creditors, are also declared by recent acts. (7) Thirteenthly. Title by Administration has been treated as a mode by which a right to personal property may be acquired, first by the administrator, and after he has paid all debts of the intestate, and the duty equal to the legacy duty, then by his delivering the same, not (as in the case of real property) to the heir, but to the next of kin, in pursuance of the statute of distributions, 22 & 23 Car. 2, c. 10, explained by 29 Car. 2, c. 30, and in the following order : A Table showing how the Personal Estate of an Intestate is to be distributed. (n) Wife and child, or children, Wife only, No wife or child, His personal representatives shall take in proportions following: One-third to wife, rest to child or children; and if children are dead, then to their representatives, (that is, their lineal descendants,) except such child or children, not heirs at law, who had estate by settlement of intestate, in his lifetime, equal to other shares. Half to wife, rest to next of kin in equal degree to intestate, or their legal representatives. All to next of kin and their legal representatives. (g) Ante, 107, n. (ƒ). (i) 1 Sim. & Stu. 315. (k) 6 Geo. 4, c. 16; 1 & 2 W. 4, c. 56. (1) 7 Geo. 4, c. 57; 1 Will. 4, c. 38. As to what is personalty, 3 Russ. R. 376. (m) As to the administration bond, see 8 B. & Cres. 151; 2 Man. & Ry. 136, S. C. Chit. Col. Stat. 324, 325, in notes. (n) See Bridgman's Index, and Chitty, E. Eq. Dig. tit. Distribution, 319, 320, where see the cases as to the course of distribution collected; see also 2 Bla. Com. 515, 516, and Toller's Executor, 6th ed. 80 to 94, 369 to 403; Id. Index, 564, 565. In general, administration is to be granted in the same order, viz. to the person next of kin, Id. ibid., and see Table, Id. 90. Where there are several next of kin in the same degree, the ordinary may grant administration to all, or to any one or more he pleases, 2 Bla. C. 504; Toller, 85; 1 Stra. 552; 1 Salk. 36. But the claim of administration by the party or parties entitled is so usual a claim of right, that a mandamus issues from K. B. in favour of the party entitled to enforce it, 8 East, 408. Administration may be granted to a partner if next of kin decline, 2 Sim. & Stu. 127. If intestate dies, leaving Child, children, or representatives of them, If no child, children, or representatives S of them, Child and grandchild, Husband, Father, and brother, or sister, Mother, and brother, or sister, Wife, mother, brothers, sisters, and nieces, Wife, mother, nephews, and nieces, Wife, brothers or sisters, and mother, Mother only, Wife and mother, { His personal representatives shall take in All to him, her, or them. All to next of kin in equal degree to Half to child, half to grandchild, who takes by representation. Whole to him. Whole to father. Whole to them equally. Half to wife, residue to mother brothers sisters and nieces. Two-fourths to wife, one-fourth to mother, and other fourth to nephews and nieces. Half to wife, (under statute of Car. 2,) half to brothers or sisters, and mother. Whole, (it being then out of statute of 2 Jac. 2, c. 17.) (m) Half to wife, half to mother. bro-Equally to both. Brother or sister of whole blood, and bro-` ther or sister of half blood, Posthumous brother or sister, and mother, er sister born in lifetime of father, Uncle or aunt's children, and brother or sister's grandchildren, Grandmother, uncle, or aunt, Uncle by mother's side, and deceased uncle or aunt's child, Nephew by brother, and nephew by half sister, Brother or sister's nephews or nieces, Nephew by deceased brother, and nephews and nieces by deceased sister, Brother and grandfather, Brother's grandson, and brother or sister's daughter, Brother and two aunts, Father and wife, Equally to both. Equally to both. Equally to both. Equally to all. All to grandmother. All to uncle. Equally per capita. (n) Whole, nephews and nieces taking per stirpes, (o) and not per capita. Each an equal share, per capita, and not Sper stirpes. Whole to brother. It will be observed that this statute secures as just a distribution of the personal assets as under ordinary circumstances would probably be directed by the most deliberate will, and in general the word "relations" in a testament will be (m) By statute 1 Jac. 2, c. 17, s. 7, if after death of father any of his children shall die intestate, without wife or children, in lifetime of mother, every brother and sister, and representatives of them, shall have an equal share with mother. (n) Per capita, is where all claimants claim in their own right, as in equal degree of kindred, and not jure representationis; as if the next of kin be intestate's three brothers, A. B. and C.; here his effects are divided into three equal portions, and distributed per capita, one to each. 2 Bla. Com. 517. (a) When persons take by representa tion, it is called succession in stirpes; as (p) If grandson's father survived the CHAP. III. I. RIGHTS ΤΟ PERSONALTY. CHAP. III. 1. RIGHTS ΤΟ construed by reference to the statute of distributions. (n) Hence, unless a party wish to prefer one or more particular PERSONALTY. relations, or other persons, so as to alter the ordinary course of distribution, any great solicitude to make a will is unnecessary. By Will or Tes tament. The mere circumstance of an administrator having been in possession of and used goods of the intestate for three months after the death, is not sufficient to change the property, so as to subject the goods to seizure for the private debt of the administrator, and therefore if taken under an execution against him, he, in the character of administrator, may support an action of trespass for seizing such goods. (o) No action lies for a distributive share. (p) Fourteenthly, Title by Testament. Here there is a leading distinction between a devise of land and a will or testament of personal property. In the case of real property of freehold tenure, the testator must in general not only have his estate or interest therein at the time of making his will, but he must also continue to have the same interest in the same estate until his death, and after-purchased lands, or even the same lands, if he materially change his interest therein, will not pass to the devisee, but will descend to the heir, unless he afterwards republish his will; whereas, as respects personalty, the will is ambulatory, and property purchased or vested in the testator after making such will, passes to the legatee, if the testator's intention to that effect can be collected from the will, and there will be no ademption of the legacy unless the intention was clearly to revoke; as, if at the date of a will the testator have certain stock in the funds, and bequeath it to A., and afterwards sell out the stock, but subsequently re-purchase the like or similar stock, the last may pass to A. as a substitution of the original stock, without re-publishing the will; (g) but then the will must be so framed as to import such intention; for where A. being married to B. bequeathed a legacy to "my beloved wife," and B. afterwards died, and A. married C., it was held that the latter was not entitled to the bequest. (r) Another distinction is, that a will of lands and tenements, not copyhold, must, by express enactment, be signed by the testator, and must have three attesting witnesses; (s) whereas a testament of personalty does not require signature or any witness; (t) and even written instructions (n) Brandon v. Brandon, 3 Swan. 319; and see 1 T. R. 161, and as to meaning of term relation. (0) 2 Mood. & Mal. 132. (p) 7 B. & Cres. 542. (1) Cas. temp. Talb. 226; 2 Jac. & W. 207; 1 Russ. & M. 629. (r) 1 Russ. & M. 629. (s) 29 Car. 2, c. 3, s. 5. (t) Gilb. R. 260; Comyns, 452; 2 Phil. Ec. C. 213; 2 Bla. C. 501, 502. As to Stock, ante, 96, note (p). |