Of Title to Personal Property, by Transfer by Act of Law
NOTES
1. Laws of N.Y. sess. 24. ch. 29. s. 9.
2. Ibid. sess. 36. ch. 8. s. 3.
3. Laws of N.Y. sess. 24. ch. 29. s. 10.
4. 2 Hawk. P. C. b. 2. ch. 49. sec. 30. 4 Blacks. Com. 380.
5. Laws of U. S. April 20, 1790. ch. 9. s. 24.
6. Constitutions of Pennsylvania, Delaware, and Kentucky.
7. Constitutions of Ohio, Tennessee, Indiana, Illinois, and Missouri.
8. The constitution of Maryland.
9. Considerations on the Law of Forfeiture for High Treason.
10. Laws of N.Y. sess. 36. ch. 19. Dane's Abr. vol. iv. 537, 538.
11. Cro. J. 73.
12. Andrews' Rep. 18.
13. Jenk. Cent. case 88. p. 189.
14. Sheppard's Touch. tit. Gift.
15. Dig. 6. 1. 35. and 63. Pothier, Traité Droit de Propriété, No. 364.
16. 3 East, 251.
17. 2 Blacks. Com. 285, 471.
18. Marshall, Ch. J. 4 Wheaton 195.
19.Sturges v. Crowninshield, 4 Wheaton, 122.
20.Ogden v. Saunders, 12 Wheaton, 213.
21.Mayo v. Archer, Str. 513. Wells v. Parker, 1 Term Rep. 34.
22.Patman v. Vaughan, 1 Term Rep. 572. Bartholomew v. Sherwood, ibid, note.
23.Wells v. Parker, ub. sup.
24. 8 Vesey, 1.
25.Ogden v. Saunders, 12 Wheaton, 213. Sturges v. Crowninshield, 4 ibid. 122. McMillan v. McNeill, ibid. 209; and see vol. i, 393-396.
26. With respect to the operation, value and policy of our general system of insolvent law, it was observed by the Chancellor and Judges of the Supreme Court of this state, in a report made by [the legislature], the 22d January, 1819, in pursuance of a concurrent resolution of the two houses, that judging from their former experience, and from observation in the course of their judicial duties, they were of opinion, that the insolvent law was the source of a great deal of fraud and perjury. They were apprehensive that the evil was incurable, and arose principally from the infirmity inherent in every such system. A permanent insolvent act, made expressly for the relief of the debtor, and held up daily to his view and temptation, had a powerful tendency to render him heedless in the creation of debt, and careless as to payment. It induced him to place his hopes of relief rather in contrivances for a discharge, than in increased and severe exertion to perform his duty. It held out an easy and tempting mode of procuring an absolute release to the debtor from his debts; and the system had been, and still was, and probably ever must be, from the very nature of it, productive of incalculable abuse, fraud and perjury, and greatly injurious to the public morals.
27. Laws of N.Y. April 12th, 1813, February 28th, 1817, February 20th, 1823, and April 9th, 1823, and the federal decisions last cited.
28. The laws of the individual states on the subject of bankrupt and insolvent debtors, have hitherto been unstable and fluctuating, but they will probably be redigested and become more stable, since the decisions of the Supreme Court of the United States have at last defined and fixed the line around the narrow enclosure of state jurisdiction.
29.Mason v. Haile, 12 Wheaton, 370. Marshall, Ch. J. 4 Wheaton, 201.
30. Act sess. 36. ch. 81. — sess. 40. ch. 55. — sess. 42. ch. 106. — sess. 43. ch. 71. — sess. 46. ch. 17.
31. Laws of N.Y. sess. 24. ch. 40, — sess. 45. ch. 228.
32.Lenox v. Howland, 3 Caines, 323.
33.Case of Fitzgerald, 2 Caines, 318.
34. Ibid.
35. Ex parte Schroeder, 6 Cowen, 603.
36. 1 Johns. Rep. 165.
37. 1 Atk.90. Ex parte White, and Ex parte Whitchurch. 2 Sch. & Lef. 229. Assignees of Gardiner v. Shannon.
38. 4 Johns. Ch. Rep. 460.
39. 1 Harris & McHenry, 236.
40. 2 ibid. 463.
41.Milne v. Moreton, 6 Binney, 353.
42.McNeil v. Colquhoon, 2 Haywood, 24.
43. Constitutional Reports, 283.
44. Kirby's Rep. 313.
45. 13 Mass. Rep. 146.
46. Pratt, J. in 20 Johns. Rep. 254.
47.Ogden v. Saunders, 12 Wheaton, 213.
48. 2 Blacks. Com. 494-496.
49. Laws of N.Y. sess. 1. ch. 12. and sess. 10. ch. 38. Goodrich, v. Pendleton, 4 Johns. Ch. Rep. 552.
50. Sess. 46. ch. 70.
51. Laws of N.Y. sess. 36, ch. 79. s. 5.
52.Taylor v. Delancy, 2 Caines' Cases in Error, 143.
53. 1 Salk 36. Fawtry v. Fawtry, Str. 552. Anon.
54. Laws of N.Y. sess. 36. ch. 79. s. 6.
55. S. Touch. by Preston, 464.
56. Laws of N.Y. sess. 36. ch. 75. s. 17.
57. 2 Vern. 125, arg. 2 Blacks. Com. 504.
58. S. Touch. by Preston, vol. ii. 453. 1 Atk. 464. Durant v. Prestwood.
59. 1 P. Wms. 41. Blackborough v. Davis.
60. 2 Addams, 352. Tucker v. Westgarth.
61. 1 Rol.Abr. tit. Executor. c. 1. S. Touch. by Preston, vol. ii, 468.
62. Laws of N.Y. sess. 36 ch. 19. s. 10 — sess. 38. ch. 157.
63. Ibid. sess. 36. ch. 75. s. 1.
64. Dig. 11. 7. 45. Ibid. 35. 2. 72. 1 Brown's View of the Civil Law, 307.
65. See Sheppard's Touchstone, by Preston, vol. ii. 475-480, and Bacon's Abridgment, tit. Executors and Administrators, L. 2, for a succinct view of the rules of the common law, touching the order of paying debts by executors and administrators.
66. In Virginia, North Carolina, Tennessee, South Carolina, Kentucky, New Jersey, Delaware, Georgia, Illinois and Indiana, the English order of preference is preserved, with the exception of a few slight variations. Thus, in South Carolina, no preference can be given among debts in equal degree. In Virginia and Kentucky, debts due on protested foreign bills are placed on a footing with judgments. In New Jersey, debts due to the state have no preference over other debts in equal degree. In North Carolina and Tennessee, specialty and simple contract debts are placed on an equality. See Griffith's Law Reporter, h. t.
67. This is the case in the states of New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, Ohio, Mississippi, and Alabama, with some small variations. Thus, in Alabama, debts due to sureties are preferred. Griffith's Reg. passim. Dane's Abr. Of American Law, vol. i. 560.
68. Grifith's Law Register, h. t.
69. Frazer v. Tunis, 1 Binney, 254.
70. L. N.Y. sess. 36. ch. 75. sect. 16.
71. See vol. i. 503, note, and also Carter v. Crawley, T Raym. 496. Palmer v. Allicock, 3 Mod. 58. Edward v. Freeman, 2 P. Wms. 436.
72. Sir John Strange, in Lloyd v. Tench, 2 Vesey, 213.
73. 1 P. Wms. 41. l Vesey, 215.
74. Cited in 1 P. Wms. 53.
75. 3 Atk.762. Amb. 191. Burns' Eccl. Law, vol. iv. 416.
76. Voct, Com. ad Pand. lib. 38. tit. 17. ch. 13.
77. Shower's Cases in Parliament, 108.
78.Burnet v. Mann, 1 Vesey, 156.
79. 1 Salk 250.
80. Pett's case, 1 P. Wms. 25.
81. 1 P. Wms. 593. Bowers v. Littlewood. 2 N. Hamp. Rep. 460. Parker v. Nims.
82.Walsh v. Walsh, Prec. in Ch. 54. Davers v. Dewes, 3 P. Wms. 50.
83.Durant v. Prestwood, 3 Atk. 454. Lloyd v. Tench, 2 Vesey, 213.
84. 2 P. Wms. 344.
85. 1 Atk. 457. The English doctrine of distribution of personal properly, according to the statutes of 22d and 23d Charles II, and 29 Charles II, and 1 James II, is fully and clearly explained by Ch. J. Reeve, in his Treatise an the Law of Descents, under the head of Introductory Explanation. It is the most comprehensive, neat, and accurate view of the English law on the subject, that I have any where met with.
86. This is the case in Tennessee, North Carolina, Maryland, Delaware, and New Jersey.
87. This is the case in Maine, New Hampshire, Vermont, (but there the male children take double the portion of the females,) Massachusetts, Rhode Island, Connecticut. (but there the whole blood are, in certain cases, preferred to the half blood, and even when in equal degree,) Pennsylvania, Virginia, (but there the half blood inherit only half as much as the whole blood,) Ohio, Indiana, Illinois, Georgia, Kentucky, Missouri, (but there brothers, and sisters, and parents, take equally,) Mississippi, (but there brothers and sisters, and their descendants, take before parents,) South Carolina, (but there parents, and brothers, and sisters, take equally, and a brother of the half blood does not share with a mother), and Alabama. See Griffith's Law Register, h. t. 2 N. Hamp. Rep. 461. Dane's Abridgment, vol. iv. p. 538, 539. 5 Conn. Rep. 233. 1 McCord's S. C. Rep 161, 456. Reeve's Law of Descents, passim. I do not undertake to mark minutely, or in detail, the many smaller variations from the English, and our New York law of distributions, which have been made by the statute law of the different states. Such a detail would be inconsistent with the plan of these lectures, which were intended as an elementary sketch of the general principles and outline of the law. To descend to minutiae on every subject, would render the work too extensive, and too uninteresting for the study of those persons for whom this is prepared. The doctrine of descent,. and, consequently, in a great degree, of distribution in the different states, has been admirably illustrated, and very ably discussed, by the late Ch. J Reeve, of Connecticut, in his laborious Treatise on the Law of Descents in the several United States of America. This work does honor to his memory; but it is not calculated to suit the taste of those general readers who have no mathematical heads, because of the very numerous algebraical statements of hypothetical cases with which the work abounds, and by which it is perplexed.
88.Praelec. part 1. lib. 3. De Success. ab. inst. collat. sect. 20, tom. 1, 278. Ibid, part 2. lib. 1. tit. 3. De conflictu legum, sect. 15, tom. 2, 542.
89. Quaest. Jur. Priv. lib. 1. ch. 16.
90. Heinecc. Opera, tom. 2. 972. De testament, jure Germ. sect. 30. Opinion of M. Target on the Duchess of Kingston's will. 1 Coll. Jurid. 240. Toullier's Droit Civil Francais, tom. 1. No. 366.
91. Droit des Gens., b. 2. c. 8. sect. 103, 110.
92. 2 Vesey, 35.
93. 2 Bos. & Puller, 229. note.
94. 3 Vesey, 198.
95. 5 Vesey, 750.
96. 2 Addam's Rep. 14.
97. What facts constitute a domicile of the person, has been a question frequently discussed. There is no fixed or definite period of time requisite to create it. The residence to create it may be short or long, according to circumstances. It depends on the actual or presumed intention of the party. A person being at a place, is prima facie evidence that he is domiciled there; but it may be explained, and the presumption rebutted. The place where a man carries on his established business, or professional occupation and has a home and residence, is his domicile, and he has all the privileges, and is bound by all the duties flowing therefrom. Though his family reside part of the year at another place, such place is regarded only as a temporary residence, and the home domicile for business takes away the character of domicile from the other. The original domicile of the party always continues until he has fairly changed it for another; and if a party has two contemporary domiciles, and a residence in each alternately of equal portions of time, the rule which Lord Alvanley was inclined to adopt was, that the place where the party's business lay, should be considered his domicile. Lord Thurlow, in Bruce v. Bruce, 2 Bos. & Puller, 229. note. 3 Vesey, 201, 202. 5 Ibid. 786-789. See also 1 Johns. Cas. 366. note, and 4 Cowpen, 546. note, for a collection of authorities on this question of domicile.
98.Dixon v. Ramsay, 3 Cranch, 319. United States v. Crosby, 7 ibid. 115. Desesbats v. Berguier, 1 Binney. 336. Decouche v. Savetier, 3 Johns. Ch. Rep. 210. Harvey v. Richards, 1 Mason, 408. Topham v. Chapman, 1 Rep. Const. Court S. C. 292. Crofton v. Ilsley, 4 Greenleaf, 134.
99.Dawes v. Head, 3 Pickering, 128.
100. 1 Blacks. Rep. 640.
101. 2 Phillimore, 266. note.
102. Ibid. 261.
103. This curious question was much discussed in the civil law, and the presumption as to which was the longest liver, vibrated between the parent and child, according to circumstances. (Dig. lib. 34. tit. 5. ch. 10. s. 1. and 4. and 23, 24. de Commorientibus.) It was also very ingeniously and elaborately handled in the Causes Celctres, tom. 3. p. 412 to 432; and a number of cases cited. The decisions had not been steady or consistent. M. Talon, the eloquent Avocat General, took a distinguished lead in the discussions. The ancient French jurisprudence had nothing fixed on the subject, and continued floating and uncertain, with a very shifting presumption in favor of one or another person, according to age and sex, and manner of the death, until the law was reduced to certainty by the code Napoleon. (Toullier's Droit Civil Francais, tom. 4. No. 76.) By the Napoleon code, No. 720, 721, 722, when two of the next of kin perish together, without it being possible to be known which died first, the presumption of survivorship is determined by circumstances. If the parties were both under fifteen years of age, the eldest shall be presumed to have survived. If above sixty, the youngest shall be presumed to have survived. If they were between the ages of fifteen and sixty, and of different sexes, the male shall be presumed to have been the survivor, provided the ages were within a year of each other. If of the same sex, then the youngest of the two is presumed to have survived.
