thus again a part of the common law: which defeats the reasoning of Blackstone (p. 429), where he tries to show that a devise must necessarily be postponed to such a custom. For while that may be true of a local custom, which, by its nature, excludes common-law rights, it is meaningless when applied to a rule of the common law itself. And even if the heirloom be considered as a fixture, or as an extension of the same principle by which fixtures are made a part of the realty, this would not account for the rule that a devise of the heirloom by a tenant in fee-simple is void, as Blackstone states in the passage last cited. All our books treat of the heirloom as something that may find place in American law, even though not often actually found there. But the object of this note is to suggest the question whether there is any authority for such a rule: whether the heirloom should not be treated with us as simply obsolete, as much so as heriots or mortuaries. That a chattel may be made by settlement or devise to follow the title of an estate in land as a fixture does, is admitted. But there is no authority, I think, for saying that any tenant in feesimple may not sever it again, as he may sever any part of the soil or of the physical contents of the close. (See note 7 to chapter 1, ante.) It is to the senseless repetition of such obsolete forms of law, or of legal rights, that is due much of the student's difficulty in acquiring clear notions of the law now in force; and from that again springs much of the uncertainty and error in the application of the law to actual cases which constitute the greatest and bestfounded reproach againstthe law in the minds of laymen. (78) But though the heir has a property in the monuof his ancestors he has none in their bodies ments or ashes, page 429. Nor, as it appears, has the personal representative or the widow of deceased. As the disposition of the dead was entirely within the jurisdiction of the ecclesiastical courts during the period when the common law was in process of formation, it is not surprising that we find little light on the subject in the latter. But it has been often discussed of late years, and the general opinion seems to be that the duty of burial or other proper disposal of the body lies with the personal representative, but terminates with that act, and that so far as property in the remains can be said to exist, it belongs to the next of kin, who in this country are identical with the heirs at common law. (Wynkoop v. Wynkoop, 42 Pa. St. 293; 82 Am. Dec. 506, with note, pp. 509–513, citing many cases; Queen v. Stewart, 12 Ad. & E. 776; In re Betteson, 12 Moak, 656; Rogers v. City of Minneapolis, 13 Ind. 134; Lowry v. Plitt, 16 Am. Law Reg. N. S. 155.) Most cases, however, follow Blackstone in holding the corpse to be res nullius. "In a buried coffin containing a corpse there is no ownership that can be asserted by one person against another in a civil action; but an ownership of a character sufficient to support a charge of larceny will be taken to exist somewhere. It is not necessary for the purposes of the criminal law, to fix this ownership, and an indictment is sufficient which charges that the coffin is the property of some person to the jurors unknown." "The property may be said to be in the person who bought the coffin for the purpose of interment. Articles which may have no market value may nevertheless have a value which the law will recognize." (State v. Doephe, 5 Mo. App. 590, quoted in 17 Alb. L. J. 296; and on appeal in 68 Mo. 208; 30 Am. Rep. 735; Meagher v. Driscoll, 99 Mass. 281; 93 Am. Dec. 759; Weld v. Walker, 130 Mass. 423.) The most thorough and discriminating discussion of the subject may be found in Pierce and Wife v. The Proprietors of Swan Point Cemetery and Metcalf, 10 R. I. 227; 14 Am. Rep. 667, holding that a dead body is not strictly property, but that there may be rights and duties of certain persons in relation to it, arisen out of common humanity, of analogous nature. (See, also, the report of S. B. Ruggles on the Law of Burial, in 4 Bradford's Surrogate Reports, 528.) (79) Pews in the church, page 429. The hereditary descent of pews at common law depends not only on their being real property, but also on their character as incorporeal hereditaments, the freehold being in the parson. Hence it is inapplicable in this country where there is no established church or legal parson of the parish. Pew-owners may have a title to their respective parts of the real estate occupied by the church, but this is rarely the case, and it is misleading to say that "in this country, in the absence of statute provisions, pews in churches are usually considered as real estate." (Boone on Real Property, ?8.) Still less is this proved by the fact that a pew-owner may maintain trespass or has an exclusive right to occupy. Usually his right is purely contractual and possessory, and the common-law "pew" is as obsolete as the coat-armor or the heirloom of this chapter. CHAPTER THE TWENTY-NINTH. OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. In the present chapter we shall take into consideration three other species of title to goods and chattels. V. The fifth method therefore of gaining a property in chattels, either personal or real, is by succession: which is, in strictness of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, movables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies; and therefore the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate. Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give anything to be taken in succession by such a body, that succession need not be expressed: but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists. And thus a lease for years, an obligation, [431] a jewel, a flock of sheep, or other chattel interest, will vest in the successors, by succession, as well as in the identical members, to whom it was originally given. But with regard to sole corporations, a considerable distinction must be made. For if such sole corporation be the representative of a number of persons; as the master of an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the a 4 Rep. 65. b Bro. Abr. t. estates. 90. Cro. Eliz. 464. 8 old law before the reformation, who represented the whole convent; or the dean of some antient cathedral, who stands in the place of, and represents in his corporate capacity, the chapter; such sole corporations as these have in this respect the same powers, as corporations aggregate have, to take personal property or chattels in succession. And therefore a bond of such a master, abbott, or dean, and his successors, is good in law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representative.* Whereas in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession: and therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successors, shall have it. For the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs, but his executors; so if it be made to John bishop of Oxford and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such his successors. The reason of this is obvious: for, besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from the [432] death of the present owner until the successor be appointed; and this is contrary to the nature of a chattel interest, which can never be in abeyance or without an owner; c Dyer. 48. Cro. Eliz. 464. 8 d Co. Litt. 46. e Brownl. 132. 8 Previously, "politic." e |