William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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England; but all the assets were wanted, to be applied, in the
course of administration, by the executor at Calcutta. It was
held, that the administrator here was only ancillary to the executor
in India; and the assets ought to be remitted, unless he was com-
pelled by law to appropriate them here to pay debts. It was not
decided whether he was compelled to pay here; but if it were the
case, it would only be the American creditors; and the British cred-
itor was not entitled to come here and disturb the legal course of
settlement of the estate in his own country. If there were
no legal claimants with us, in * the character of cred- [ * 484 ]

and recorded, and to have the .^me force and effect as if proved in the ufinal
way: and letters testamentary or of administration, with the will annexed,
are to be granted. Mass. Revised Statutes of 1835, part 2, tit. 4, ch. 3. Act
of Maine, 1821.

(a) Dawes r. Head, 3 Pick. Rep. 128.

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* 434 OP PERSONAL PROPERTY. [Part V.

itors, legatees, or next of kin, the administrator wonld be bound
to remit the assets to the foreign executor, to be by him adminis-
tered according to the law of the testator's domioil; and if any
part of the assets were to be retained, it would form an exception
to the general rule.growing out of the duty of every government to
protect its own citizens in the recovery of their debts. The inti-
mation has been strong, that such an auxiliary administrator, in
the case of a solvent estate, was bound to apply the assets found
here to pay debts due here; and that it would be a useless and
unreasonable courtesy, to send the assets abroad, and the resi-
dent claimant after them. But if the estate was insolvent, the
question became more difficult The assets ought not to be se-
questered for the exclusive benefit of our own citizens. In all
civilized countries, foreigners, in such a case, are entitled to
prove their debts, and share in the distribution. The court con-
cluded, that the proper course in such a case would be, to retain
the funds, cause them to be distributed pro rato, according to
our own laws, among our own citizens, having regard io all the
assets, and the whole aggregate amount of debt here and abroad^
and then to remit the surplus abroad to the principal adminis-
trator. Such a course was admitted to be attended with delay
and difficulty in the adjustment; but it was thought to be less
objectionable, than either to send our citizens abroad upon a for-
lorn hope, to seek for fragments of an insolvent's estate or to pay
them the whole of their debts, without regard to the claims of
foreign creditors (a)."

{a) In the case ex parte Ryan {Keicfoundfnnd Rep. 113), it was held, that in
the case of the insolvency of two branches of the same firm, one in England,
and the other in Newfoundland, the property in each country was exclus-
ively divisable among the creditors who trusted the branch where the pro-
perty was situated. The supreme court of I^ouisiaua. in Gravillon r. Rich-
ards, 13 Loms. i?. 293. followed the Massachusetts doctrine, and declared that
it was competent for the courts of probate^s iu Ix)uisiana, to order the remis-
sion of funds belonging to a foreigner domicileil in France, but <]^iug at New
Orleans, to the representatives in Franfce authorized to receive them, anil
that policy and justice required such a transmission, inasmuch as the civil-
itors were in France, and none in liouisiana. In Davia r. Estey, 8 Pick, -Rep.
475. it was held that where the original administration w<as in another state,
and that in Msissachusetts only ancillary, and the estate insolvent, the creditor
iu Massjichusetts was only entitled to apt-o rata dividend, though the assets
in Massachusetts were sufficient to meet his demand. In the ca.se of the^e
difi'erent administrations, each is deemed so far indei)endent of theothe^^».
that property received under one, cannot be sued tor under another, though
it may at the time be within the jurisdiction of the latter. Currie r
Bircham, 1 Doiol. <Jt* Ryf. Rep. 3.*). Nor can a judgment against one, furnish
• " See Story's Equity Jurisprudence, JJ 5««— SHiJ.

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Lee. XXXVII.] OF PERSONAL PROPERTY. * 434

A diffiimlt qaestioQ on the sabject of the distribation of the
property of intestates, arose in the K. B. in England, in 1767,

a right of action against the other: for in contemplation of law, there is no
priority between them. Lightfoot t. Bickley. 2 ^awtes Rep. A\\\, Story on
the Conflict of Laws, p. 434, 4:W, 437. lo Mothlaud r. WLseman, 3 Penn. Rep.
185, the subject was well discussed. It was held, that the liability of the
administrator to account, and bis title to the assets, was commensurate only
with the jurisdiction of the authority that appointed him, and the trust was
in exclusion of foreign interference, and was regulated by the law of ihe loci
rei Hitre. This principle was indispensable to the protection of the resident
or domestic creditors, who were not to be sent abroad to assert their claims
in foreign courts, so long as there were assets within the control of the do-
mestic administration. The foreign courts might impair the priorities al-
lowed by the domestic law, or bar claims by shorter statutes of limitation.
Tlie intestate's eflTects wore to be collected and administered under the au-
thority of the local jurisdiction, in which they were at his death, and with
the permission to foreign creditors to participate in proportion to their debts,
respect being had to the aggregate of the estate and debts, whether foreign
or domestic If there be no domestic claimants, or they be satisfied, then
the local auxiliary administrator is to remit the assets, when collected, to
the primary administrator at the place of the intestate's domicil, and to
whom they rightfVilly l)elong for administration. This is not the case as to
executors, whose title, flowing from the will, extends to the as.sets, wherever
found. The opinions of the Ch. J. in this case, and in the rase of Millcr*s
Estate. 3 Rawle, 31^, are drawn with much precision and force; and the gen-
eral American rule from these Pennsylvania ca.ses, and from decisions in
Massachusetts and South Carolina, seems to be (and Mr. Justice Story, in
his CommentarieH on the Conflict of Laws, p 423» comes to the same conclusion,
and see, also, supi^n, p. 420), that the new administration is made subservient
to the rights of creditors, legatees, and distributees resident icHhiUtfic country;
and that the residuum was transmissible to the foreign country only when
the final account had been settled in the proper domcstit; ti^.bunal, upon the
equitable principles adopted in its laws. Some of the authorities above
referred to. speak of the domestic legatees and distributees as beingj entitled,
after creditors, to have their claims satisfied out of the as.sets arising within
the authority of the ancillary administrator; but other cases, as Richards n
Dutch, 8 Mass Rep. 500, Dawes r. Boyleston. 9 Ibid 387, and Stevens v. Gay-
lord. 11 Ibid. 357. held, that they are to resort to the primary administra-
tion abroad, where the residuary assets are to be transmitted The case of
the Heirs of Porter v Heydock, 6 Vermont Rep. 374, followed the principle
declared in the cases of Dawes r. Head, and Harvey r. Ki«:hards. and decided,
that it nppeiiained to the courts in Vermont, when the ancillary adminis-
tration was grauteil there, to settle and adjust the accounts of the adminis-
trator touching assets received in Vermont; and that it was dincretionatTf in
them to order distribution in Vermont, or remit the effects to the place of the
pnncij)al administration for that purpose. It rested on courtesy and expe-
diency alone, and it is the usual course to remit them; but it will not be
adopted when the rights of those entitled to the estate would be endangered
by it, •

The yfnssaehusetts Revised Statutes of 1R35, part 2, tit 4 ch. 70, sec. 21—26,
have finally settled thisquestion in that state. They direct, that if adminis-
tration be taken out on the estate of a person who was of another state, or
a foreigner, the estate after payment of debts, should be disposeil of according
to his will, if validly made according to the law of Mas.sachusetts. If no
will, the real estate descends according to the law of that state, and his per-
sonal estate is to be distributed according to the law of his domicil, after the
payment of all debts for which he was liable in that state. The residue
may be thus distributed by the probate court in which the estate is settled,

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* 436 OP PERSONAL PROPERTY. [Part V.

in the case of The Kingy, Hay (a). A father and his
[ *485] *ODly daughter perished at sea, in the same vepsel, and

in one catastrophe, and a question suggested by the
case was, who took under the statute of distributions. If the
father died first, the personal estate would have vested in the
daughter, and, by her death, in her next of kin, who, on the part
of the mother, was a different person from the next of kin on the
part of the father. The right to succeed depended upon the fact
which person died first, and that fact could not possibly be known,
as the vessel perished at the same time. It was said to be the
rule of the civil law, to found its presumptions on the relative
strength, arising from the difference of age and sex of two per
sons; but these presumptions were shifting and unstable. The
court did not decide the question. The arguments on each side
were equally ingenious >and inconclusive. Lord Mansfield rec-
ommended a compromise, as he said there was no legal principle od
which he' could decide it. The same question arose again in the
prerogative court, in 1793, in Wright v. Sarmuda (6). The hus-
band, wife and children, all perished together, in a vessel which
foundered at sea; and Sir William Wynne, after a long and
learned discussion, held it to be the most rational presumption,
that all died together, and that none could transmit rights to
another. So, again, in Taylor v. Diplock, in 1815 (c), in a like
case. Sir John Nicholl assumed, that the parties (who were hus-

or it inny be transmitted to the executor or administrator, if any, in the
place of the deceased's domici I, to be there disposed of, as the court, under
the circumstances ot the case, shall think best. If the decease<l died insol-
vent, his estate in Massachusetts is to be disposed of as far as practicable
equally among his creditora there and elsewliere. His estate is not to be
tninsmitted to the foreign executor, or administrator, \intil the domestic
creditors had received their jast proportion of all the estate, wherever
found, and applicable to the payment of common ci'editors; and the do-
mestic creditors are to receive their just proportion l)efore any other cred-
itor shall bepaid out of the asseU. After the domestic creditora have so
received their just proportion, other creditors, who prove their debts, may
then receive their proportion; but no one is to receive more than would Imj
due to him, if the whole was to be divided rateably among all the creditors.
The balance, if any, to be transmitted as afi»resaid.

In Kentucky, the law of the domicil of the intestate is not regartled m to
the successionto moveable property, w far as his creditora in that state arc
concerned. The administration for the benefit of creditors is regulated by
the lex loci ret siix. Warren t;. Hall, 6 Dana^ 452.

in) 1 Blacks. Rep. 640.

(h) 2 PhUUmore, 266, n. Afterwanls, in Calvin r. Procurator General, 1
Hagg. Ecvf. Rep. 350, Sir John Nicholl held the presumptiou of law in such
a case to be, that the husband survived.

(c) 2 PhiUimore, 261.

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Lee. XXXVII.] OF PERSONAL PROPERtY. * 436

band and wife) perished at the same moment ; and he could not
decide on any survivorship in the case, and consequently granted
admiuistration to the representatives of the husband (a). The
English law has hitherto waived the question, and, perhaps pru-
dently, abandoned as delusive, all those ingenious and refined
distinctions which have been raised on this vexed subject by the
civilians. The latter draw their conclusions from a tremu-
lous presumption resting on the dubious point, which
* of the parties, at the time, under the difference of [ * 436 ]
age or sex, or of vigour and maturity of body, and quick-
ness and presence of mind, was the most competent to battle and
retard the approaches of death (6).'*

(rt) So, also in the case of Murray^ in the English prerogative court, 1 Curt.
596, the husband, wife and child perished together by shipwreck, and ad-
ministration was granted on the husband's efFects, as of n widower.

[h) This curious question was much discussed in the civil law, and the
presumption as to which was the longest liver, vibrated between parent and
child, according to circumstances. {Dig. lib. 34. tit. 5, ch. 10, sec. I and 4, and
23, 24, df Cotnmorieiiiibus. ) It was also very ingeniously and elaborately handled
in C/iuseA Celehrea, tome iii. pp. 412—432; and a numljer 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 Hxed on the subject, and continued floating and
uncertain, with a very shifting presumption in favour of one or another
person, according to age and sex, and manner of the death, until the law
wa.s reduced to certainty by the Code Napoleon. ( Toullier, Droit Civil Frangaift,
tome iv. No. 76.) By the Code Napoleon, No. 720, 721, 722, and by the Cirii
Ctideof Louisiana, No. 9.'i0— 933, which has adopted the same provision, 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 circum-
stances. 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 pre-
sumed to have survived. If they were between the age 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.

The cases on this difficult subject in the jurisprudence of the civil law, of
the continental nations of Europe, and of England, are collected and stated
in Burgees Com, on Colonial and Foreign Laics, vol. iv. p. 11 — 29. Tlie case
of Pell V. Ball, on the same subject, recently occurred in the <*ourt of chan-
cery in South Carolina, and was decided in January, 1840. The husband
and wife both perished with many others in the dreaidful destruction of the
steamer Palaski by explosion of a boiler in the night of June 14th, 1838, on
her passage from Charleston to New York. The wife (Mrs. Ball) was seen
alive on the wreck for a short time after the explosion, but the husband
was not seen after the explosion. Chancellor Johnston decided upon that
fact in favour of the survivui-ship of the wife. There was a ground of prob-
ability founded upon positive proof* of that fact, superior to any thing
founded on arbitrary presumptions, and the decision was no doubt logical
and correct.

'•See, further, upon the Laws of Intestacy, the statutes and laws of the
various states.

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* 438 OF PERSONAL PROPERTY. ] [Part V.



LECTURE XXXVIIL

OF TITLE TO PERSONAL PKOPERTY BY GIFT.

Title to personal property arising from transfer by act of the
party, may be acquired by gift, and by contract.

There has been much discussion among the writers on the civil
law, whether a gift was not properly a contract, inasmuch as it is
not perfect without delivery and acceptance, \vhich imply a con-
vention between the parties. In the opinion of Toullier (a),
every gift is a contract, for it is founded on agreement; while, on
the other hand, Puffendorf had excluded it from the class of con-
tracts, out of deference to the Roman lawyers, who restrained the
definition of a contract to engagements resulting from negotia-
tion. Barbeyrac, in his notes to Puffendorf (6), insists, that,
upon principles of natural law, a gift inter vivos, and which ordi-
narily is expressed by the simple term gift, is a true contxact; for
the donor irrevocably divests himself of a right to a thing, and
transfers it gratuitously to another, who accepts it; and which
acceptance, he rationally contends, to be necessary to the validity
of the transfer. The English law does not consider a gift, strictly
speaking, in the light of a contract, because it is voluntary, and
without consideration; whereas a contract is defined
[ * 438] * to be an agreement upon sufficient consideration to do
or not to do, a particular thing (c). And yet every gift
which is made perfect by delivery, and eyery grant, are executed
contracts; for they are founded on the mutual consent of the
parties, in reference to a right or interest passing between them.

There are two kinds of gifts; 1. Gifts, simply so called, or gifts
inter vivos, as they were distinguished in the civil law; 2. Gifts
causa niortis, or those made in apprehension of death. The rules

(a) Droit Civil Frangais^ tome v. Des Donations entre Vifs, ace. 4, 5, and
n. 1.

{b) Droit des Gcns^ liv v. ch. 3, sec. 10, n. 6.
(c) 2 Blacks, Cotnm. 442.

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Lee. XXXVIII.] OF PERSONAL PROPERTY. *439

by which they are governed are difiPereni, and qnite distinct, and
they were taken from the Roman law.

L Gifts inter vivos have no reference to the fatnre, and go into
immediate and absolute effect Delivery is essential, both at law
and in equity, to the validity of a parol gift of a chattel or chose
in action; and it is the same whether it be a gift inter vivos, or
causa mortis (a). Without actual delivery, the title does not
pass. A mere intention, or naked promise to give, without some
act to pass the property, is not a gift. There exists the locus
pcpnitentice, so long as the gift is incomplete, and left imperfect
in the mode of making it; and a court of equity will not interfere
and give effect to a gift left inchoate and imperfect (6). The
necessity of delivery has been maintained in every period of the
English law. Donatio perficitur possessions accipientis, was one
of its ancient maxims (c). The subject of the gift must be
certain, and there must be the mutual consent and concurrent
will of both parties. It is, nevertheless, hinted or assumed, in
ancient and modem cases (d), that a gift of a chattel, by deed or
writing, might do without delivery; for an assignment
in writing would be tantamount *to delivery. But in [*439 ]
Cotteen v. Missing (c), a letter to executors, expressing
a consent that a specific sum of money be given to a donee, was
not a sufficient act in writing; and it was held not to be a gift of
so much money in their hands, because the consent was not exe-
cuted and carried into efiect, and a further act was wanting in
that case to pass the money. The vice-chancellor held, that
money paid into the bands of B., for the benefit of a third per-
son, was conntermandable, so long as it remained in the hands of
B (g). A parol promise to pay money as a gift is not binding,

in) Iroas r. Smallpiece, 2 Bamw. d' Aid. 551. Bnnn r. Markhani, 7 Tnv»t.
R('}t. '227. Bryson v. Brownrigg, 9 Veney^ 1. Antrobus r. Smith, 12 Ibid. 39.
HiKiper r. Goodwin, 1 Stmnsf. Rep, 485.

[h) Antrobiw v. Smith, 12 Vcsey, 39. Pennington v. Gittings, 2 Gill. &
JohrtJf. 208.

(r) Jeiik. Ceni. 109, case 9. Bracton^ de acqinrendo rmtm Dominio, lib. 2.
l.'j. 16. In South Carolina, it ia declared by statute in 1H30, that no paml
gift of any chattel shall be valid against subsequent creditors, purchrt.sers, or
mortgagees, except where the donee is separate and apart fnmi the donor,
and actual possession delivered at the time and continued in the douce and
his i-epresentatives.

((/) Flower's case, JVa;/« Rep. 67. Irons v. Smallpieee, 2 B(trnw. A Aid 551.
Carne r. Marlev, 2 Yerger'n Tenn. Rep. 582.

(c) 1 Madditck'^ Ck. Rfj}. 176.

ig) 1 ^y<''-» 49, a. S. P.

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* 440 OP PERSONAL PROPERTY. [Part V.

and the party may revoke his promise (a); and a parol gift of a
note from a father to a son, was held not to be recoverable from
the executors of the father (6).

Delivery, in this, as in every other case, must be according to
the nature of a thing. It must be an actual delivery, so far as the
subject is capable of delivery. It must be secundum subjectam ma-
ieriam^ and be the true and effectual way of obtaining the command
and dominion of the subject If the thing be not capable of
actual delivery, there must be some act equivalent to it The
donor must part, not only with the possession, but with the do-
minion of the property (c). If the thing given be a chose in
action, the law requires an assignment, or some equivalent instru-
ment, and the transfer must be actually executed. Therefore,
where a donor expressed by letter his intention of relinquishing
his share of an estate and directed the preparation of a release
of the personal estate, and he died before it was executed, it was
held, that bis intention, not being perfected, did not amount to

a gift (d).
[ * 440 ] *When the gift is perfect, by delivery and acceptance,
it is then irrevocable, unless it be prejudicial to credit-
ors, or the donor was under a legal incapacity, or was circum-
vented by fraud. A pure and perfect gift inter vit>08 was also
held by the Roman law to be in its nature irrevocable: and yet ia
that law it was nevertheless revocable for special reason, such as
extreme ingratitude in the donee, or the unexpected birth of a
child to the donor, or when sufficient property was not left with
the donor to satisfy prior legal demands (e). The English law
does not indulge in these refinements, though it controls gifts
when made to the prejudice of existing creditors.

By the statutes of 50 Ed. Ill, ch. 6, and 3 Hen. VII. oh. 4, all
fraudulent gifts of goods and chattels in trust for the donor, and
to defraud creditors, were declared void; and by the statute
of 13 Eliz. ch. 5, gifts of goods and chattels, as well as of

(a) Pearson r. Pearson, 7 Johns. Rep. 26.

(6) Fink r. Cox, 18 Johns. Rep. 145. Pitts v. Mangnm. 2 Bailey's S. C.
Rep. 588, S P.

(c) Hawkins r. Blewitt, 2 Esp. Rep. 663. Noble v. Smith, 2 Johns. Rep, 52.

{d) Hooper o. Goodwin, 1 Sujanst. Rep. 486. Picott;. Sanderson, 1 Decereux^g
N. a Rep. 309, S. P.

(e) Code, lib. 8, tit. 56. De Revocandis Donationtbus. 1. 10. Ibid. 1. S,
Code, lib. 3, tit. 29. De inofficiosis Donationibus. Puff, Droit des Gens, par
Barbeyrac, tome ii. 43, n.

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Ijec. XXXVIII.] OP PERSONAL PROPERTY. * 440

lands, by writing or otherwise, made with intent to delay,
hinder, and defraud creditors, were rendered void, as against
the person to whom such fraud would be prejudicial. But the
statute excepted from its operation, estates or interests in lands
or chattels conveyed or assured bona fide and upon good con-
sideration, without notice of any fraud or collusion. The
statute of 27 Eliz. ch. 4, was made against fraudulent con-
veyances of lands to defeat subsequent bona fide purchasers, and
it applies in favour of subsequent purchasers for a valuable con-
sideration, even in cases of fair voluntary conveyances, provided
they were purchasers without notice of the voluntary conveyance(a).
These statutes have been re-enacted in New York, and with in-
creased checks (6); and doubtless the principle in them, though
they may not have been formally or substantially re-enacted, pre-
vails throughout the United States (c).' All the doctrines of the

{a) Vide f /*/rn, vol. 4, p. 463.

(ft) N. Y. Revised Statutes^ vol. ii. p. 135, sec. 1; Ibid. vol. ii. p. 137, sec. 1,
3. The provision applies equally to every species of transfer, and to things
in action, and to every charge npon lands, goods, or things in action; and
not only in i'avonr of creditors and purchasers, but in favour of the heirs, suc-
cessors, personal representatives, and assignees, vrho represent them. It
is even made a misdemeanor to be a party or privy to any conveyance or as-
signment of any interest in goods or things in action, as well as in lands,
with intent to defraud prior or subsequent purchasers, or to delay, hinder,
or defraud creditors, or other persons. Ibid. vol. ii. p. 690, sec. 3. In



Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 71 of 108)