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Law of prop
Wills, therefore, and testaments, rights of inheritance and sucsarily arbi- cessions, are all of them creatures of the civil or municipal laws,
and, accordingly, are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid : neither does any thing
vary more than the right of inheritance under different nation[ 13 ] al establishments. In England particularly, this diversity is
carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be that has not its foundation in the positive rules of the state. In personal estates, the father may
succeed to his children; in landed property, he never can be their immediate heir, by any the remotest possiblility :6 in general, only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance : in real estates, males are preferred to females, and the eldest male will usually exclude the rest; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.
This one consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice; while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires," they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the son had, by nature, a right to succeed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas the law of nature suggests that, on the death of the possessor, the estate should again become common, and be open to the next occupant, unless otherwise ordered, for the sake of civil peace, by the positive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of
such appointment, to go to some particular person who, from [ 14 ] the result of certain local constitutions, appears to be the heir
at law. Hence it follows that, where the appointment is regularly made, there can not be a shadow of right in any one but
(6) The law is now different. Even heir to his child, though not as father. when the text was written it was not (See post, p. 220, n., 240, n.) impossible for a father to be immediate
(7) Two witnesses are now sufficient.
the person appointed ; and, where the necessary requisites are omitted, the right of the heir is equally strong, and built upon as solid a foundation as the right of the devisee would have been, supposing such requisites were observed.8
But, after all, there are some few things which, notwithstand
Some things ing the general introduction and continuance of property, must still in comstill unavoidably remain in common, being such wherein noth- light, air, ing but an usufructuary property is capable of being had; and, water, &e. therefore, they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences; such, also, are the generality of those animals which are said to be feræ naturæ, or of a wild and untamable disposition, which any man may seize upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterward.
Again: there are other things in which a permanent prop- And other erty may subsist, not only as to the temporary use, but also the thing which solid substance; and which yet would be frequently found with- unless ap. out a proprietor, had not the wisdom of the law provided a as Wrecks;
, remedy to obviate this inconvenience. Such are forests and &c. other waste grounds, which were omitted to be appropriated in the general distribution of lands; such, also, are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of game. With regard to these and some others, as disturbances and quarrels would frequent- [ 15 ] ly arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has, therefore, wisely cut up the root of dissension by vesting the things themselves in the sovereign of the state ; or else in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has uni
(8) A strange confusion is here made disappointed devisee is an adopted of something which is called the law of child, without fortune, who has been nature, of positive law, and of the rules treated and has behaved as if the of morality; and few of his readers will tie had been one of nature. The agree with the commentator in conclud- heir breaks no promise, it is true, by ing that an heir would always be mor- ruining the orphan, but few would be ally justified in taking an advantage of disposed, after such an act, to rely on a slip in the execution of his ancestor's his honesty., will. Suppose the heir to be wealthy, distantly related to his ancestor, and (9) See this doctrine discussed in the personally a stranger to him ; while the note to p. 419, post. The legislature
versally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.
has now vested the property of game, in land on which it is found. (Stat. 1 & 2 most instances, in the occupier of the Will. IV., c. 32.)
OF REAL PROPERTY; AND, FIRST, OF CORRUAL HEREDITAMENTS.
The objects of dominion or property are things, as contra- Things divi; distinguished from persons; and things are by the law of En-ded poetes ornal gland distributed into two kinds . thmgs real and things personal. Things real are such as are permanent, fixed, and immovable, which can not be carried out of their place, as lands and tenements : things personal are goods, money, and all other movables, which may attend the owner's person wherever he thinks proper to go.
1° (1) But there may, by the law of En, mixed, from their local relation on the gland, be estates or interests of a per- one hand, and the personal perception, sonal nature, although in immovable enjoyment, or exercise of them on the things. Such are estates for years in other. Hence we obtain the division land, which have at common law all the of hereditaments into real, mixed, and incidents of personal property ; see p. personal.” 335. Mr. Ferne, after noticing the dis- “ Besides the distribution of hereditatinction between things real and things ments into real, mixed, and personal, personal, says, “Now the word heredit- there is another general division of them aments in our law is applicable to both into corporeal and incorporeal, material these species of things, but in a differ- to be attended to in this place. Corent mode or degree of relation ; for when poreal hereditaments are such as are of applied to the first, viz., things real, it a substantial corporeal nature. This degenerally denotes the things themselves, nomination, therefore, is confined to which are the subject of property, with those subjects of property which are out regard to the nature or extent of comprised under the denomination of property therein. Thus things real, that things real, as before mentioned. Inis, land in all the extent of the above corporeal hereditaments are such as dedefinition of them, are distinguished by rive the denomination of hereditaments the denomination of hereditaments real; not from the things themselves, which but the word hereditaments, when used are the subjects of the enjoyment, but in relation to personal things, does not from the inheritable rights of which they impart or signify the things themselves, are the subject; for rights are of an inbut is only applicable to them in respect corporeal nature, and exist merely in of some inheritable right of which they the power and exercise of enjoyment. are in some mode or other the subject, * Incorporeal hereditaments, thereand, in this sense, inheritable rights rel- fore, comprise the two divisions of mixative to personal things only, and dis- ed and personal hereditaments already tinct from any local connection, are noticed ; and under the same denominacalled hereditaments personal.
tion I would, in this place, be understood “Of a nature in some measure inter- to include such real hereditaments as mediate between the two already no- consist of rights to the future enjoyment ticed, there is a third application of the of lands, divided from the immediate word hereditaments, when it is used to de- present possession; for though I do not note inheritable rights respecting lands, recollect that remainders or reversions or something issuing therefrom, or exer- are any where expressly ranked under cisable thereon, or at least having some the division of incorporeal hereditalocal connection or relation separate and ments, yet, unless we deny them to be distinct from the enjoyment of the lands hereditaments, our division must be dethemselves. Inheritable rights
of this fective if they are not comprised under description are termed hereditaments the one or the other branch of it-and to VOL. II.-B
Subject of In treating of things real, let us consider, first, their several real property divided. sorts or kinds; secondly, the tenures by which they may be
holden ; thirdly, the estates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and
losing it. First, the First, with regard to their several sorts or kinds, things real
are usually said to consist in lands, tenements, or hereditaments.? Land comprehends all hings of a permanent, substantial na
ture; being a word oi a very extensive signification, as will Tenement presently appear more at large. Tenement is a word of still
greater extent, and though in its vulgar acceptation is only ap[ 17 ] plied to houses and other buildings, yet in its original, proper,
and legal sense it signifies every thing that may be holden, provided it be of a permanentnature; whether it be of a substantial and sensible, or of an unsubstantial, ideal kind. Thus, liberum tenementum, frank tenement, or freehold, is applicable not that of corporeal hereditaments I think is improper to describe the property they are not properly referable; for, sought to be recovered as a tenement, though corporeal hereditaments are their unless with reference to a previous more subject, yet, while the rights remain certain description. 1 East, 441; 8 distinct and undivided from the right of East, 357 By the general description actual possession, I see nothing substan- of a messuage, a church may be recovtial in their nature, nor do I comprehend ered. 1 Salk., 256. The term close, how they can be considered as invested without stating a name or number of with any degree of corporeality. On acres, is a sufficient description in ejectthe contrary, they seem clearly to fall ment. (11 Coke, 55.) In common acwithin that predicament which I take ceptation it means an inclosed field, but to be the criterion of an incorporeal in- in law it rather signifies the separate inheritance-tangi non potest, nec videri.” terest of the party in a particular spot
“There are also other properties com- of land, whether inclosed or not. (7 mon to them with other estates, which East, 207; Doct. and Stud., 30.) If a are universally and expressly arranged in man make a feoffment of a house “ with the class of incorporeal inheritances; as, the appurtenances,” nothing passes by for instance, they do not lie in livery, the words with the appurtenances but and, when once created and subsisting the garden, curtilage, and close adjoinas such, can not be transferred without ing to the house, and on which the house deed.” (Posthumous Works, p. 8.) is built, and no other land, although
usually occupied with the house ; but (2) The terms lands, tenements, and by a devise of a messuage, without the hereditaments, and other names describ- words with the appurtenances,” the ing real property, are fully described in garden and curtilage will pass, and, Co. Lit., 4, à, to 6, b. It will be found where the intent is apparent, even other material to attain an accurate knowl- adjacent property. (See 2 Saund., 401, edge of them.
An advowson in gross n. 2; 1 B. & Čr., 350; 12 Ad. & E., will not pass by the word “lands” in a 442; and, further, as to the effect of the will, but it is comprehended under the word “appurtenant,” 15 East, 109; 3 term tenements. Hob., 304; Fort., 351; Taunt., 24, 147; 1 B. & P., 53, 55; 2 3 Atk., 464; Ca. temp. Talb., 143; 11 T. R., 498, 502 ; 3 M. & S., 171 ; 1 Cr. Moore, 139; 4 Bing., 297.-[CHITTY.] & M., 439; 6 Nev. & M., 282.) The (3) As to the term permanent being tion it imports à tract of land with a
term farm, though in common acceptapart of this definition, see 1 Prest. Est., 10, and H. Chitty on Descents, 11, 12. house, outbuildings, and cultivated land, -[CHITTY.]
yet in law, and especially in the descrip
tion in an action of ejectment, it signifies (4) Therefore, in an action of eject- the leasehold interest in the premises, ment, which, with the exception of tithe and does not mean a farm in its comand common appurtenant, is only sus- mon acceptation. (See post, p. 318.) tainable for a corporeal hereditament, it [CHITTY.]