The hand-book of the law of legacies / containing a statement of the nature of legacies, and the accidents to which they are subjects; together with the rights of legatees, and the causes and manner of the ademption, cumulation, and abatement of their bequests

by Anonymous

PERSONAL ASSETS.

Personal assets are either moveables not attached to the land or their produce, and derive their appellation from being either attached to the person of the owner, or from being capable of being moved about with him. They are either animate as living creatures, or inanimate, as vegetables, and include all the vast variety of property which necessity or luxury has called into existence. Properly speaking they are not assets until converted into money for the payment of debts or legacies, though they may certainly constitute the subject of specific legacies. As however they either form subjects of bequest, as they are, or the means by which it is to be produced, we will follow the arrangement into which they naturally fall.

Animate chattels, as before they are converted into assets they are properly called, are divided into domitæ and feræ naturæ, or such as are tame or reclaimed, and such as are wild; the former admitting of an absolute, the latter of only a qualified ownership—the former embracing all kinds of farming stock and poultry, the latter all those which, unsubdued to confinement, still enjoy their natural liberty, and therefore cannot pass to representatives. Such also are fish in any natural stream or reservoir of water; but fish in a tank, as well as creatures in confinement, are capable of sale, and therefore of transfer: and this is the case also with all the young, the weak, or the lame, of all those wild creatures which, either from feebleness or any other cause, cannot assume their natural liberty. Under this specification come also all hounds, greyhounds, and spaniels, and all the accessaries of falconry or the chase, as well as every thing kept either for curiosity or from whim. An executor is also entitled to appropriate as assets deer in a park, hares or rabbits in an enclosed warren, doves in a dovecot, pheasants or partridges in a mew, fish in a private pond, and bees in a hive of the testator, where lessee for years of the premises to which they respectively belong, so long as they continue in a state of subjugation, and no longer; for as soon as they obtain their natural freedom, they pass into the class of feræ naturæ, and are beyond the reach of his domain.

Vegetable chattels which may be appropriated as assets are the fruit of a tree or plant when separated from the body of the thing that bears it; or the tree or plant itself when severed from the ground, as grass that is cut, and trees which are felled, or branches which are lopped. Of the same character also are all those vegetable productions which are produced by the exertion and skill of the owner or occupier, and which are technically called emblements; extending to roots planted or other artificial profit, and including corn, growing crops, hops, saffron, hemp, flax, clover, saintfoin, and, in short, every other yearly production in which art and industry combine with nature. The executor has also been held entitled to hops though growing on ancient roots, as cultivation was necessary to produce them. Manure, in a heap, also, before it is spread on the land, is personalty; but afterwards it becomes attached to the soil, and is consequently indirectly the property of the owner of the soil.

The inanimate chattels, which constitute personalty, are furniture, merchandize, money, (including stock in the funds, shares in public companies, and property of similar kind) pictures, clothing and jewels, and, in fact, every thing that can be moved from place to place. The presentation to a living, if the living be occupied at the time of the testator’s death, is, as has been stated, property of a real nature, and of course goes to the heir; but if it be open or unoccupied, it forms a personal chattel, and becomes assets in the hands of the executor. Copyrights and patents are also considered as personal chattels.

All these things become assets in the hands of the executor, in whatever part of the world they may be, at the moment of the testator’s death. But in order to their becoming so, it is necessary that the testator must have professed an absolute property in them; and therefore it is, that, if he, having been the obligee of a bond, has assigned that bond with a covenant not to revoke, it does not become part of his assets. Nor are goods bailed, as it is called, or delivered for a particular purpose to a carrier, or to an innkeeper, to secure in his inn; nor goods pledged, until the time of redemption shall have passed. Neither are the goods of an outlaw assets at the time of his death, for his executor has no right to touch them.

Chattels, however, whether real or personal, may be held in joint tenancy as well as in common; so if a lease be granted, or a house be given to more than one person absolutely, they are joint tenants of it, and unless the jointure be severed, it shall be the exclusive property of the survivor. But if the jointure of interest be severed by one of the parties disposing of his share to another, that other person becomes, with the previous owner or owners, a tenant in common, instead of a joint tenant; and the principal of survivorship does not hold, but the chattel, or the portion of it which belonged to the testator, whatever it may be, falls to the executor, and becomes assets. Thus, money left to two parties to be divided between them, occasions a tenancy in common, because it can be divided without injury to either; but not so with a horse or a house, for that could not be severed without destruction to it, and a consequent defeat of the testator’s will. But on the argument of convenience and justice, and for sake of encouraging husbandry and commerce, the goods of a warehouse or a shop, or the stock of a farm, although occupied jointly, will, in the absence of any express contract to the contrary, be considered as property in common; and on the death of any part owner of such property, his share would fall to his executors, to meet the claims of legatees, according to the will. So also, on that principle of personalty which the law invariably recognises, and that distinction which it invariably observes between the rights and actions of individuals, and the attachment and nature of property, the executor of a testator who has been joined in any action for the recovery of property, cannot take his place in the action and carry it on, however indolent or negligent the survivor in the action may be in endeavouring to bring it to a fortunate conclusion; but he has a right of action against him for the injury sustained by the property through his negligence, and also to oblige him to account when the action has terminated. In such a matter a court of equity will in general interfere.

Occasionally it happens that chattels real are changed into chattels personal, and thus become available for the payment of legacies; and chattels personal are sometimes changed into chattels real; and thus the legatees are deprived of the amount for the liquidation of their claims. The former instance occurs when a debt has become due to an executor by statute, recognisance, or judgment, and he has in consequence taken the lands of the debtor in execution; for here the original property in the debt, which was money, and consequently personalty, has been converted into realty, to which the heirs’ claim supersedes that of the legatees. Chattels real, on the other hand, are converted into personalty by the redemption of a mortgaged estate. Had the mortgage which the testator held become foreclosed through the negligence or inability of the mortgagor, the property would have continued real as it was at the time of his death, but by the payment of the debt, the estate again becomes money, and consequently a personal asset to meet the legacies, or any other claims upon the testator’s estate.