whom it is given, is known as a legatee. Although given absolutely by the will, such legacy is nevertheless conditional in its character; for if the debts due by the testator exceed the amount provided by him for their payment, the legacies may be abated, in part or entirely, according to the amount required to pay the debts. If a legatee dies before the testator, the legacy is lost or lapsed, and sinks into the residue of the estate. The assent of the executor is necessary to perfect the legal title of the legatee, and where the executor unreasonably withholds such assent, he may be compelled to yield it by decree of a court of equity. Legacies are ordinarily payable one year after the decease of the testator.

Read 2 Bl. Comm., pp. 489-520.
Will. P. P., pp. 233–255.

4 Kent Comm., Lect. lxviii, pp. 516-518.

1 Redfield Wills, Ch. vi.

2 Redfield Wills, Ch. xiii, Sec. 8, 14, 16, 17.

§ 167. Of the Requisites of a Testament.

The requisites of a will of personal property, as well as the mode and time of the vesting and payment of legacies, are now usually determined by statute in the different States. The rules, concerning the execution and construction of a written testament, are generally the same as those governing a devise.

Read 1 Redfield Wills, Ch. ii, iv, v, vi, vii, ix.

§ 168. Of Title by Contract.

Title by contract is the title by which a person acquires an estate in personal property, through the transfer thereof to him by another person, for a valuable consideration. A

contract is an agreement between two or more persons, upon sufficient consideration, to do or not to do a particular thing. Four things are necessary thereto (1) Parties able to contract; (2) A sufficient consideration; (3) A subject-matter to be contracted for; (4) An actual contracting by proposal on the one side and acceptance on the other.

Read 2 Bl. Comm., p. 442.

1 Pars. Cont., Prelim. Ch., Sec. 2, 3.

§ 169. Of the Parties to a Contract.

Any person, not debarred therefrom by law, may make a contract. An infant cannot bind himself by any contract except for necessaries. A married woman, not abandoned by her husband, can make no contract except as to her sole and separate estate, unless empowered so to do by statute. Insane persons, and persons under guardianship, are also usually unable to contract.

Read 1 Bl. Comm., pp. 442-445, 465, 466.

2 Bl. Comm., pp. 290–293.

2 Kent Comm., Lect. xxviii, pp. 150-161; Lect. xxxi, pp. 234-243; Lect. xxxix, pp. 450-453.

1 Pars. Cont., B. i, Ch. xvii, Sec. 1, 3, 5–9; Ch. xviii,

xix.

§ 170. Of the Consideration of Contracts.

The consideration of a contract must be both valuable and lawful. Any benefit arising to the party promising, or any prejudice to the party to whom the promise is made, is a sufficient consideration. Mutual promises, made at the same time, are sufficient considerations for each other;

and a subsisting legal obligation to do a thing is a sufficient consideration for a promise to do it.

Read 2 Bl. Comm., pp. 444-446.
Will. P. P., pp. 62–66.

2 Kent Comm., Lect. xxxix, pp. 463-468.
1 Pars. Cont., B. ii, Ch. i.

§ 171. Of the Subject-Matter of Contracts.

The subject-matter of a contract may be either some estate in real property, some visible and tangible chattel, some exercise of skill and labor, some forbearance of an existing right, or any other matter beneficial to the person to whom it is to be given or for whom it is to be done. In all cases, this subject-matter is property, whether it be a material object, or a mere right and obligation.

Read 2 Bl. Comm., p. 446.

1 Pars. Cont., B. iii, Ch. i, Prelim. Rem.

§ 172. Of the "Meeting of the Minds."

The actual contract consists in the meeting of the minds of the parties upon the same thing, and in the same sense. In other words, the thing, intended to be proposed and actually proposed on one side, must be, in all material respects, the very thing intended to be accepted and actually accepted on the other. In the absence of this meeting of minds there can be no contract.

Read 2 Kent Comm., Lect. xxxix, p. 477.

1 Pars. Cont., B. ii, Ch. ii.

§ 173. Of Oral and Written Contracts. Statute of Frauds.

Contracts may be either oral or in writing. Where they are in writing and under seal, they are called specialties;

when not under seal, they are called simple contracts. Certain contracts are, by the Statute of Frauds, 29 Charles II. c. 3, required to be in writing. Among these are: (1) Contracts for the sale of any interest in lands; (2) Contracts that cannot be performed within one year from their date; (3) Contracts binding an executor or administrator to pay a debt of his decedent out of his own estate; (4) Contracts to answer for the debt, default, or miscarriage of another; (5) Contracts made upon consideration of marriage. The principal legal difference, between a contract under seal and one not under seal, is that in the former the seal imports a sufficient consideration.

Read Will. P. P., pp. 62, 66–70, 75.

2 Kent Comm., Lect. xxxix, pp. 450, 510-512.
1 Pars. Cont., Prelim. Ch., Sec. 3.

3 Pars. Cont., Part ii, Ch. v.

§ 174. Of Express and Implied Contracts. Contracts are said to be express when the mutual promises of the parties are declared, in so many words, either orally or in writing. They are implied when the law presumes the existence of such promises from the acts or circumstances of the parties.

§ 175. Of Executed and Executory Contracts.

Contracts are said to be executed when the thing, agreed to be done, has actually been performed. They are executory when the thing to be done has not been performed. A mutual contract may thus be executed as to one party, and remain executory as to the other.

Read 2 Bl. Comm., p. 443.

2 Kent Comm., Lect. xxxix, p. 450.

§ 176. Of The Validity and Construction of Contracts. The validity and construction of contracts are governed by the lex loci contractus, or the law of the place where the contract is made and is to be performed. If made in one State and to be performed in another, the general rule is that the law of the State, where it is to be performed, will govern it. When a contract is broken, the remedy for such breach is governed by the lex fori, or law of the place where the suit is brought.

Read 2 Kent Comm., Lect. xxxix, pp. 453–463.

2 Pars. Cont., Part ii, Ch. i, ii.

§ 177. Of Contracts of Sale.

The principal contracts, by which estates in personal property may be acquired, are the following: Contracts of Sale; Contracts of Bailment; Contracts of Agency; Contracts of Partnership; Contracts of Insurance; Contracts of Indorsement; and Contracts of Guaranty or Suretyship. A contract of sale is a contract by which the ownership of some specific existing chattel is transferred from one person to another, in consideration of some specific price or recompense in value. Where this price or recompense is in money, the contract is a sale proper; where it is in goods, it is exchange or barter. All personal property which is bought and sold, or manufactured to order, and all loaned property, whose use consists in its consumption and for which a like quantity of the like property is to be returned, are acquired by this title.

Read 2 Bl. Comm., pp. 446-451.

Will. P. P., pp. 34-41.

2 Kent Comm., Lect. xxxix, pp. 468-477, 492-552. 1 Pars. Cont., B. iii, Ch. iv.