William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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not illegal. Indeed, it wotild be very difficult, if not impossible, in many
cases, to create and preserve future and contingent interests in personal prop-
erty without the intervehtion of a trustee, although trustees would not be
necessary under the provisions of the revised statutes, to create and preserve
such future and contingent interests in lands or other real estate. In all
other respects however, except as to the mere vesting of the legal title to the
property in the trustee, instead of the cestui que trust, the conveyance or be-
quest of personal estate must be governed by the same rules which are appli-
cable to a grant or devise of a similar interest in lands or real prox)erty. See
Hpnev. VanSchaick, Id. 221. Van Vechten v. Van Vechten, 8 Paige Ch.
105. Kane v. Gott, 24 Wend. 641.

29 VOL. II. KENT. 449

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Thero is an exception to the rule in the case of a beqne6t of
specific things, as, for instance, oorn, hay, and fruits, of which the
use consists in the consumption. The gift of such articles for life
is, in most cases of necessity, a gift of the absolute property; for
the use and the property cannot exist separately (a). Nor can
there be an estate tail in a chattel interest, unless in very special
cases, for that would lead to a perpetuity, and no remainder over
can be permitted on such a limitation (6). It is a settled rule,
that the same words which, under the English law,
[ * 354 ] would create * an estate tail as to freeholds, give the
absolute interest as to chattels (c).

The interest of the party in remainder in chattels, is precarious,
because another has an interest in possession; and chattels, by
their very i^ature, are exposed to abuse, loss, and destruction (d).
It was understood to be the old rule in chancery (e), that the
person entitled in remainder oould call for security from the ten-

The testator may direct the payment of legacies out of the income of the
estate by anticipation. He may bequeath the same as a fatare estate nndi-
minished in amonnt, snbject to the roles against perpetnities. He may caire
snch intermediate interests, estates, and portions out of the income in the
meantime, as he pleases, if it can be done without an actual aocnmulation ef
the rents and profits for that purpose. But an accunmlaiionofrenU andprofUs
for Vie purpose of raising a legacy or portion at a future day, is not permitted in
New York, except snch legacy or portion be for the sole benefit of a minor in
existence when the accumulation commences. N. Y, Revised SUUmles^ vol i,
p. 726, sec. 37, 38. Ibid, 773, sec. 3, 4.

(a) Randall t-. Russell, 3 MerivaleU Rep. 194. Evans u. Eglehart, 6 OiU &
Johns. 171. Henderson v. Vaulx, 10 Verger, 30. If the specific personsl
property bequeathed for life with remainder over, be capc^le of increase, as
cattle, &c., the tenant for life taking the increase to himself, is bound to keep
up the number of the original stock. 1 Domal, b. 1, tit. 11, sec. 5. Bat if
the animals do not produce young ones, the tenant for life, called the qbq-
fructuary in the ciWl law, is not bound to supply the place of those that die
without his fault. Ibid. sec. 6. In the southern states, slaves may he be-
queathed for life and remainder over, and the tenant for life is bound in
equity to account for them. Horry v. Glover, 2 ffiU^s S. C. Cfi. Rep. 520.
Though property lie of a perishable nature, it may, when the case will admit
of it, be bequeathed to A. for life, with remainder over; but as such property
becomes less valuable, from year to year, it may, under the direction of chan-
cery, be converted into government stock, for the protection of the remaindeiv
man. 4 RusgelVa Rep. 200.

(b) Dyer's Rep. 7, pi. 8.

(c) Scale V. Seale, 1 P. Wms. 290. Chandlessr. Price, 3 r<wy, 99. Bronncker
V. Bagot, 1 Merivale's Rep. 271. Tothill r. Pitt, 1 Maddock's Ch. Rep. 488.
Garth v. Baldwin, 2 Vesey, 646. Jackson t*. Bull, 10 Johns. Rep. 19. Pater-
son V. Ellis, 11 WendeWit Rep. 259.

(d) The interest in remainder in a chattel was held in Allen v. Scurry, 1
Terger's Tenn. Rep. 36, not to be the subject of sale on jl. /a., for no delivery
could be made by the sherifi. The remainder of a term in a live chattel
was a contingent interest.

(e) 2 Freeman's Rep. 206, case 280. Bracken v. Bentiey, 1 Rep. in Ch. 59.



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ant for life, that the property should be forthcoming at his de-
cease, for equity regards the tenant for life as a trustee for the
remainder man; but that practice has been overruled (a). Lord
Thurlow said, that the party entitled in remainder could call for
the exhibition of an inventory of the property, and which must
be signed by the legatee for life, and deposited in court, and that
is all he is ordinarily entitled to. But it is admitted, that security
may still be required, in a case of real danger that the property
may be wasted, secreted, or removed (6). And where there is a
general bequest of a residue for life, with remainder over, the
practice now is, to have the property sold and converted into
money by the executor, and the proceeds safely invested, and the
interest thereof paid to the legatee for life (c)."*

(a) Foley v. Biirnell, 1 Bro, Rep, 279.

(b) Fearne an Executory Devises, vol. ii. p. 35, 4th ed. by Powell. Morti-
mer V. Moffat, 3 Hen. <t- Munf. 503. Gardner v. Harden, 2 M' Cordis Ch, Rep,
:I2. Smith V. Daniel, Ibid. 143. Merrit v. Johnson, I'Verger^a Tenn. Rep. 71.
1 HilVe S. a Ch. Rep, 44, 74, 137, 157. Henderson v. Vaulx, 10 Verger, 30.
In Georgia the person entitled in remainder or reversion of personal property
may have a writ of ne exeat in snch cases. Princess Dig. 1^7, p. 469.

(c) Howe V. Earl of Dartmouth, 7 Veseg, 137. But in the case of a hequest
of specific chattels to A. for life, with remainder over, the legatee for life fs
entitled to the possession and enjoyment of the chattel, and not to have it sold
by the executors, and the proceeds invested for his use, unless the will di-
rects it. He is entitled to the increase and income of it from the testator's
death. If, however, the property bequeathed would be of no use unless con-
verted into cash, in that case a safe investment ought to he made by the exe-
cutor for the benefit of the parties in interest respectively. Evans v. Egle-
hart, 6 Gill & Johnson, 171. In Pennsylvania by act of 24th Feb., 1834,
security is to be given in all cases, under the direction of the orphan's court,
where personal property is bequeathed for life only.

• In De Peyster v. Clendining, 8 Paige Chy. 303, the Chancellor says, the
tenant for life ** must, in conformity to the practice on that subject, give to
the administrator an inventory of the articles, specifying that they are in her
custody, &s given to her while she resides on the farm only; and that when
she dies, or ceases to reside there, these articles, or those which may be sub-
stituted in the place of them, iu the ordinary use of the farm, are to be de-
livered up to the administrator, or to the trustee who may be appointed to
carry into eftect the provisions of the will. ' ' See, also, Slanuing v. Style, 3 P.
Wms. 336; Covenhoven v. Shuler, 2 Paige, 132. In Minot v. Paine, 99
Mass. 101, in which the question was whether certain additional stock divi-
dends were to be treated by a trustee as income belonging to the tenant for
life, or as capital to be kept for the legatees of the stock in remainder, it was
held they were to be taken as an accretion to his capital. See further the
cases therein cited in the opinion of Chapman, C. J., Daland v. Williams,
101 Mass. 571; Leland v. Hayden, 102 Mass. 542. In the latter case the
same judge says, **We must regard the principle as settled, that stock divi-
dends are to be regarded as principal, and cash dividends as income, and that
the question whether dividends ai'e to deemed of principal or of income is to
he determined by the votes of the corporation." See this case ilirther upon
the payment and distribution of dividend avails. See, however, Simpson v.
Moore, 30 Barb. 639, where certain payments made by a bank were con-



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Title to personal property may accrue in three different ways:
I. By original acquisition.
IL By transfer, by act of the law.
in. By transfer, by act of the parties.

The right of original acquisition may be comprehended under
the heads of occupancy, accession, and intellectual labour.

1. Of original acquisition by occupancy,.

The means of acquiring personal property, by occupancy, are
Tery limited. Though priority of occupancy was the foundation
of the right of property, in the primitive ages, and though some
of the ancient institutions contemplated the right of oc-
[ * 356 ] cupancy as standing on broad ground (a), * yet in the
progress of society, this original right was made to yield
to the strpnger claims of order and tranquillity. Title by occu-
pancy is become almost extinct, under civilized governments, and
it is permitted to exist only in those few special cases, in which
it may be consistent with the public welfare.

(a) Quod ante nulliua csf, id naiurali ratione occupanti ctmceditur, Ind, 2, 1,
12. Mr. Selden has shown, that among the ancient Hebrews fruits, fish,
animals, and every thing foand in desert or vacant places, belonged to the
first occupant. J>e Jur. Nat, et Oent. jueta diaciplinam Ebrteorum, cited by
Puff, b. 4, ch. 6, sec. 5.

sidered as a dividend, but as it contained part of what was held as capital
when the stock was purchased, so much thereof as was necessary to make up
the original investment must be retained, but the residue was income and
^yable to the plaintiff. And see Van Doren et uxor, v. Olden, 19 N. J. R, 176;
Harp's Appeal, 28 Penn. St. 368. See, further, Hemenway v, Hemenway, 134
Mass. 448, in which the questions whether the tenant for life are entitled to
all the interest after deducting expenses on the bonds received fVom the tes-
tator or bought by the trustees when worth more than par; and also, whether
the sums paid in respect of accrued interest on certain bonds should he re-
tained from the interest subsequently received, are decided. See Mpss Ap*
peal, 83 Penn. St. 264; S. C. 24 Am. R. 164; Lord v. Brooks, 52 N. H. 72.


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(1. ) Goods taken by capture in war, were, by the common law,
adjadged to belong to the captor (a). But now, by the acknow-
ledged law of nations, and the admiralty jurisprudence of the
United States, as has been already shown (6), goods taken from
enemies, in time of war, vest primarily in the sovereign; and they
belong to the individual captors only to the extent, and under
such regulations, as positive laws may prescribe.

i2.) Another instance of acquisition by occupancy, which still
exists under certain limitations, is that of goods casually lost by
the owner, and unreclaimed, or designedly abandoned by him;
and in both these cases they belong to the fortunate finder (c).
But it is requisite that the former owner should have completely
relinquished the chattel, before a perfect title will accrue to the
finder; though he has, in the mean time, a special property suffi-
cient to maintain trover against every person but the true owner(d).-
He is not even entitled to a reward from the owner for finding a
lost article, if none had been promised.' He has no lien on the
article found for his trouble and expense, and he is only entitled
to indemnity against his necessary and reasonable expenses in-.

(o) Mnch'8 Law, 28, 178. ^ro. tit. Properiy, pi. 18, 38. Wright, J., in
Morrough r. Corny ns, 1 WiU, Rep, 211.

(6) See vol. i. p. 100.

(e) 1 Blacks, Com, 296. 2 I hid. 402. In Massachnsetts, the finder ofloet
money or goods, must give notice as prescrihed, and if no owner appears
within one year, one-half goes to the finder and the other half to the town.
Act, 1788, ch. 55. Remaed SUUutes, 1835. In Illinois, {Revised Laws of Illi-
nois, 1833,) the finder of lost goods, money or choses in action, takes them if
not above $15 in value, and no claimant within one year after due public
notice. If above that value, they are to be sold in six months for public use.

(d) Armory v, Delamirie, Str, Rep, 505. Brandon v. Huntsville Bank, 1
StewaH's Ala. Rep. 320.

^ In Kincaid v. Eaton, 98 Mass. 139, it was held that, where a person deal-
ing at a bank, by accident left an article on the desk in the banking room, .
and published a reward to the finder, the finder, a person dealing at the same
bank was not entitled to the reward. See the opinion of Wells, J., thereon, in
which he says ^'To discover an article voluntarily laid down by the owner,
within a banking house, and upon a desk provided for the use of such per-
sons having business there, is not the finding of an article.'' See further
McAvoy V, Medina, 11 Allen, 548; Lawrence v. The State, 1 Humph. 228;
Wentworth v. Day, 3 Met. 364; Symmes v. Frazier, 6 Mass. 345. See the
opinion of Mr. Justice Trunkey in Hamaker v. Blanchard, 90 Penn. St. 379,
wherein he says ** Property is not lost in the sense of the rule, if it was in-
tentionally laid on a table, counter or other place, by the owner, who forgot
to take it away, and in such a case the proprietor of the premises is entitled
to retain the custody." Bridges r. Hawkesworth, 7 Eng. Law & Eq. 424;
Mathews v. Horsell, 1 E. L. Smith, N. Y. 393, cited therein as to the finder's
right to keep the article until identified and the efiect of neglect to tender
the reward. Wood v. Pierson, 45 Mich. 313; Bancroft v. Peters, 4 Mich. 619.
See, also, upon this subject Livermore v. White, 74 Me. 452; S. C. 43 Am.
Ben. 600: De la O. v. Acoma, 1 New Mex. 226.



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carred on account of the chattel (a). The Boman law equally
denied to the finder of lost property a reward for finding it; and

according to the stern doctrine of Ulpian (6), it was even
[ * 357] considered * to be theft, to convert to one's own use,

animo lucrandi, property found, when the finder had no
reason to believe it had been abandoned (c).

This right of acquisition, by finding, is confined to goods found
upon the surface of the earth; and it does not now extend to goods
found derelict at sea, though abandoned without hope of re-
covery (d). Nor does this right of acquisition extend to goods

(a) Armory v. Flynn, 10 Johns. Sep. 102. Binstead v. Buck, 2 Wm. Black-
stone, 1117. Nicholson v. Chapman, 2 H. Blacks. 254. Etter v. Edwards, 4
Watis^ Penn. R. 63. It is considered in the two last cases to be still an un-
Hettled point, whether the finder of lost property can recover a compensation
for the labour and expense voluntarily bestmved upon lost property found.
In Reeder v. Anderson, 4 Dana's Ken. Rep. 193, it was held, that the finder
was entitled, under an implied assumpsit, for his indemnity at least, against
his expenditure of time or money towards the sutrcessful recovery of lost pro-
perty. Mr. Justice Story, {Bailment, p. 391, 2d edit.) gives a strong opinion
in favour ot compensation (or what he in admiralty law langunge terms sal-
vage) to the *'mere finders of lost property on land,'* be^'ond a full indemnity
for their reasonable and necessary expenses. I beg leave to say, that it ap-

Crs to me that such findings have no analogy in principle to the cases of
ardons and meritorious sea or coast salvage under the admiralty law, and
that the rule of the cx>mmon law, as illustrated by Ch. Justice Eyre, in
Nicholson V. Chapman, as to these mere land findings, is the better policy.

(b) Dig. 47, 2, 44, sec. 4 — 10. The English law requires, that the animus
furandi must have existed, when the property was first received or taken, to
constitute larceny. Rex v. Mucklow, 1 Ryan <& Moody, 160. Butler's case,
3 Inst. 107. . Lord Coke, ibid. 2 EasCs P. C. 663. The Peopl.^ v. Anderson.
1 4 Johns. R. 294. But, on the other hand, the doctrine of Ulpian is not with-
out approbation in some of the modern decisions, and it has been held, that
if the person who finds property lost, and knows the owner, and notwith-
standing conceals and converts the property to his own nse, it is larceny.
The State v. Weston, 9 Conii. R, 527. Lawrence, J., and Gibbs, J., cited in
2 Russell on Crimes, 100, 103, and these cases are indirectly sanctioned in the
case of the People v. McGarren, 17 WendelVs R. 460.

(c) But the finder ot a chose in action, as a check or lottery ticket, is not
entitled to payment of the money due upon it, if the party paying has notice
that the holder came to the possession of it by finding. Payment under such
circumstances, to the holder, would be no bar to an action by the owner.
M'Laughlin v. Waite, 5 WendelVs Rep. 404.

(d) The ancient rule, giving to the finder a moiety of the proceeds of goods
found derelict at sea, (if any such rule ever existed,) has become obsolete;
and de-^licts are held to be perquisites, or droits of the admiralty, subject to
be reclaimed by the owner, but without any other claim on the part of the
finder, than to his resteonable salvage remuneration. This is now the general
rule of civilized countries. The Aquilla, 1 Rob. Adm. Rep. 32. The King v.
Property derelict, 1 Hagg. Adm. Rep. 383. Peabody v. Proceeds of twenty-
eight bags of Cotton, Amer. Jurist, No. 3, 119, decided in the district court
of Massachusetts, 1829. A vessel at sea is not deemed derelict, unless she
was absolutely abandoi^ed as hopeless, and animus revertendi did not exist.
The Emulous, 1 Sumner, 207. Mesner and others v* Sufiolk Bank, district
court of U. S. Mass. November, 1838.



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found hidden in the earth, and which go onder the denomination
of irecLsure-trove. * Snch goods, in England, belong to the king;
and, in New York, they formerly belonged to the public treasury;
for the statute of 4 Edit:, I. was re-enacted by the act concerning
coroners (a), which directed the coroner to inquire, by jury, of
treasure said to be found, and who were the finders, and to bind
the finders in recognizance to appear in court. I presume that
this direction had never been put in practice, and that the finder
of property has never been legally questioned as to his right, ex-
cept on behalf of the real owner; and the whole provision has
been omitted in the New York Revised Statutes, of 1829.
The common law originally, according to *Lord Coke (&), [ * 358 ]
left treasure trove to the person who deposited it; or,
upon his omission to claim it, to the finder. The idea of de-
riving any revenue from such a source, has become wholly delu-
sive and idle. Such treasures, according to Grotius (c), naturally
belong to the finder; but the laws and jurisprudence of the mid-
dle ages ordained otherwise. The Hebrews gave it to the owner of
the ground wherein it was found; and it is now the custom in Ger-
many, France, Spain, Denmark and England, to give lost treasure
to the prince, or his grantee; and such a rule, says Grotius,may now
pass for the law of nations (d). The rule of the Emperor Had-
rian, as adopted by Justinian (e), was more equitable, for it gave
the property of treasure-trove to the finder, if it was found in his
own lands; but if it was fortuitously found in the ground of an-
other, the half of the treasure went to the proprietor of the soil,
and the other half to the finder; and the French and Louisianian
codes have adopted the same rule (g).

Goods tixtived, or scattered by a thief in his flight, belong like-
wise, at common law, to the king; for there was supposed to be
a default in the party robbed, in not making fresh pursait of the

(a) L. N. v., seas. 24, ch. 43.
(6) 3 Jwd, i:)2.

(c) De Jure B. A P. b. 2, ch. 8, sec. 7.

(d) According to the Grand Coustumier of the duchy of Normandy, ch. 18.,
treasure-trove belonged to the duke. It belonged, says the text, a la Digniie
au Due,

(c) Inst, 2, 1, 39.

(g) Code Civil, No. 716. Civil Code of Louisiana, art. 3386. But the French
code limits this right of the finder to that particular case. The general rule
is, that all property vacant, and without a master, belongs to the state.
Code, No. 539, 713, 714, 717; and Toullier, in his Droit Civil Francais, tome
Iv. 37— -42, complains much of the contradiction, confusion and uncertainty
of the French regulations, on this subject of goods without an owner.



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thief, and reclaiming the stolen goods before the public officer
seized them (a). But this prerogative of the1;rown was placed
at the common law under so many checks (6), and it is so unjust

in itself, that it may perhaps be considered as never
[ * 359] adopted here as against the *real owner, and never put in

practice as against the finder; though as against him, I
apprehend, the title of the state would be deemed paramount
We must, also, exclude from the title by occupancy estrays^ being
cattle whose owner is unknown; for they are disposed of, in New
York (c), and, I presume, generally in this country, when unre-
claimed, by the officers of the town where the estray i» taken up,
for the use of the poor, or other public purposes (d). All wrecks
are likewise excluded from this right of acquisition by occupancy;
for if they be unreclaimed for a year, they are liable to be sold,
and the net proceeds paid into the public treasury (e).
. By the colony laws of Massachusetts and Connecticut, icrecks
were preserved for the owner; and if found at sea, they are sup-
posed to belong now to the United States, as succeeding, in this
respect, to the prerogative of the English crown (/). But if dis-

(a) Foxley's case, 5 Cb. 109. Cro. Eliz. 694.

(6) Finch's Law, 212.

(c) N, Y, Revised Statutes, vol. i. p. 361, 352.

{d) In Indiana, by statute of 1B30, the person who finds and takes prop-
erty adrift, or animals estrayed, is entitled to retain the property, on paying
twenty per cent, of the appraised value, fur the support of seminaries. But
he is subject, nevertheless, to have the property, or its value, reclaimed at
any time by the owner, on payment of reasonable costs and charges. Bat
by statute of 1838, estray animals, not exceeding $10 in value, afler a year's
notice and unreclaimed, vest in the taker. The same as to water-craft after
60 days' notice, and none but freeholders and householders are allowed to
take up. Revised StatuteH of Indiana, 1838, p. 266. In Ohio, the estray goes
to the finder, if no owner appears, and the estray be appraised at five dollars
or under; but if it exceeds that sum, the net proceeds go to the treasurer of
the town. Statute of Ohio, 1831. The statute applies equally to boats, rafts,
water-craft, &c., found adrift. In Michigan, under the territorial act of
April 16th, 1833, boats found adrift were to be sold unless claimed within
three months, and the claimant, on proving property, is to pay what three
disinterested freeholds shall deem reasonable. In Illinois the boat or vessel
goes to the taker, if not claimed in six months, if the value does not exceed
$20,* and if it does, and the owner does not appear in 90 days after due
public notice, the boat is sold at auction and the net proceeds appropriated
to public use. Revised Laws of Illinois, 1833.

(c) N. Y, Revised Statutes, voL i p. 690—694.

(/) Dane's Abr. of American Law, ch. 76, art. 7, sec. 12, 21, 23, 38. Con-
necticut Code of 1702. Colony Laws of Massachusetts, 1641, 1647, published in
the code of 1675. It is the general law of continental Europe, that wrecks
belong to the nation, when the owner does not appear. Heinec. Eiem. Jur.
Ord. Inst., sec. 352, 353. louUier, Droit Civil Francais, tome iv. No. 42 — 46.
In England, by the ancient common law, all property stranded, or of the



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covered on the coasts, or in the waters within the jarisdictiun of
a state, they are by statutes in the several states, to be kept for
the owner, if redeemed within a year, and if not, they are to be
sold, and the net proceeds, deducting costs and salvage, appro-
priated to public uses (a). The statute law of Massachusetts,
since the revolution, pursued the policy of the colony law, and
disposed of estrays, lost money, and goods, if unreclaimed for a

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 57 of 108)