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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 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: 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 when the text was written it was not impossible for a father to be immediate
heir to his child, though not as father. (See post, p. 220, n., 240, n.)
(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, &c. 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.
would be so
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 things 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
disappointed devisee is an adopted
(8) A strange confusion is here made of something which is called the law of nature, of positive law, and of the rules of morality; and few of his readers will agree with the commentator in concluding that an heir would always be morally justified in taking an advantage of a slip in the execution of his ancestor's 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 most instances, in the occupier of the 16
land on which it is found. (Stat. 1 & 2 Will. IV., c. 32.)
OF REAL PROPERTY; AND, FIRST, OF CORRAL HEREDITAMENTS.
THE objects of dominion or property are things, as contra- Things dividistinguished from persons; and things are by the law of En-ded into real gland distributed into two kinds things 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 gland, be estates or interests of a personal nature, although in immovable things. Such are estates for years in land, which have at common law all the incidents of personal property; see p. 385. Mr. Ferne, after noticing the distinction between things real and things personal, says, "Now the word hereditaments in our law is applicable to both these species of things, but in a different mode or degree of relation; for when applied to the first, viz., things real, it generally denotes the things themselves, which are the subject of property, without regard to the nature or extent of property therein. Thus things real, that is, land in all the extent of the above definition of them, are distinguished by the denomination of hereditaments real; but the word hereditaments, when used in relation to personal things, does not impart or signify the things themselves, but is only applicable to them in respect of some inheritable right of which they are in some mode or other the subject, and, in this sense, inheritable rights relative to personal things only, and distinct from any local connection, are called hereditaments personal.
"Of a nature in some measure intermediate between the two already noticed, there is a third application of the word hereditaments, when it is used to denote inheritable rights respecting lands, or something issuing therefrom, or exercisable thereon, or at least having some local connection or relation separate and distinct from the enjoyment of the lands themselves. Inheritable rights of this description are termed hereditaments VOL. II.-B
mixed, from their local relation on the one hand, and the personal perception, enjoyment, or exercise of them on the other. Hence we obtain the division of hereditaments into real, mixed, and personal."
"Besides the distribution of hereditaments into real, mixed, and personal, there is another general division of them into corporeal and incorporeal, material to be attended to in this place. Corporeal hereditaments are such as are of a substantial corporeal nature. This denomination, therefore, is confined to those subjects of property which are comprised under the denomination of things real, as before mentioned. Incorporeal hereditaments are such as derive the denomination of hereditaments not from the things themselves, which are the subjects of the enjoyment, but from the inheritable rights of which they are the subject; for rights are of an incorporeal nature, and exist merely in the power and exercise of enjoyment.
"Incorporeal hereditaments, therefore, comprise the two divisions of mixed and personal hereditaments already noticed; and under the same denomination I would, in this place, be understood to include such real hereditaments as consist of rights to the future enjoyment of lands, divided from the immediate present possession; for though I do not recollect that remainders or reversions are any where expressly ranked under the division of incorporeal hereditaments, yet, unless we deny them to be hereditaments, our division must be defective if they are not comprised under the one or the other branch of it-and to
In treating of things real, let us consider, first, their several real property 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 several sorts.
First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments.2 Land comprehends all things of a permanent, substantial nature; being a word of 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 permanent3 nature; 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 they are not properly referable; for, though corporeal hereditaments are their subject, yet, while the rights remain distinct and undivided from the right of actual possession, I see nothing substantial in their nature, nor do I comprehend how they can be considered as invested with any degree of corporeality. On the contrary, they seem clearly to fall within that predicament which I take to be the criterion of an incorporeal inheritance—tangi non potest, nec videri." "There are also other properties common to them with other estates, which are universally and expressly arranged in the class of incorporeal inheritances; as, for instance, they do not lie in livery, and, when once created and subsisting as such, can not be transferred without deed." (Posthumous Works, p. 8.)
(2) The terms lands, tenements, and hereditaments, and other names describing real property, are fully described in Co. Lit., 4, a, to 6, b. It will be found material to attain an accurate knowledge of them. An advowson in gross will not pass by the word "lands" in a will, but it is comprehended under the term tenements. Hob., 304; Fort., 351; 3 Atk., 464; Ca. temp. Talb., 143; 11 Moore, 139; 4 Bing., 297.-[CHITTY.]
(3) As to the term permanent being part of this definition, see 1 Prest. Est., 10, and H. Chitty on Descents, 11, 12. -[CHITTY.]
(4) Therefore, in an action of eject ment, which, with the exception of tithe and common appurtenant, is only sustainable for a corporeal hereditament, it
is improper to describe the property sought to be recovered as a tenement, unless with reference to a previous more certain description. 1 East, 441; 8 East, 357 By the general description of a messuage, a church may be recovered. 1 Salk., 256. The term close, without stating a name or number of acres, is a sufficient description in ejectment. (11 Coke, 55.) In common acceptation it means an inclosed field, but in law it rather signifies the separate interest of the party in a particular spot of land, whether inclosed or not. East, 207; Doct. and Stud., 30.) If a man make a feoffment of a house “with the appurtenances," nothing passes by the words with the appurtenances but the garden, curtilage, and close adjoining to the house, and on which the house is built, and no other land, although usually occupied with the house; but by a devise of a messuage, without the words "with the appurtenances," the garden and curtilage will pass, and, where the intent is apparent, even other adjacent property. (See 2 Saund., 401, n. 2; 1 B. & Čr., 350; 12 Ad. & E., 442; and, further, as to the effect of the word "appurtenant," 15 East, 109; 3 Taunt., 24, 147; 1 B. & P., 53, 55; 2 T. R., 498, 502; 3 M. & S., 171; 1 Cr. & M., 439; 6 Nev. & M., 282.) The tion it imports a tract of land with a term farm, though in common acceptahouse, outbuildings, and cultivated land, yet in law, and especially in the description in an action of ejectment, it signifies the leasehold interest in the premises, and does not mean a farm in its common acceptation. (See post, p. 318.)— [CHITTY.]