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But this method of one man's abandoning his property, and another seizing the vacant possession, however well founded in theory, could not long subsist in fact. It was calculated merely for the rudiments of civil society, and necessarily ceased among the complicated interests and artificial refinements of polite and established governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and useful to another, who was ready to give in exchange for it some equivalent that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or conveyance; which *may be considered either [*10 as a continuance of the original possession which the first occupant had, or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor. The voluntary dereliction of the owner, and delivering the possession to another individual, amount to a transfer of the property: the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer.: Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property; and Titius, being the only or first man acquainted with such my intention, immediately steps in and seizes the vacant possession: thus the consent expressed by the conveyance gives Titius a good right against me; and possession, or occupancy, confirms that right against all the world besides. (14)
The most universal and effectual way of abandoning property, is by the death of the occupazit: when, both the actual possession and intention of keeping possession ceasing, the property which is founded upon such possession and intention ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him: which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for, then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments, which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition *at all, the municipal law of the country then steps in, and declares [*11 who shall be the successor, representative, or heir of the deceased; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would (k) occasion. And further, in case no testament be permitted by the law, or none be made,
(k) It is principally to prevent any vacancy of the inheritance does not so properly descend, as possession that the civil law considers father and continue in the hands of the survivor. Pf. 28, 2, 11. son as one person; so that, upon the death of either,
(14) Upon whatever principle the right of property is founded, the power of giving and transferring seems to follow as a natural consequence: if the hunter and the fisherman exchange the produce of their toils, no one ever disputed the validity of the contract or the continuance of the original title. This does not seem to be aptly explained by occupancy; for it cannot be said that in such a case there is ever a vacancy of possession.-CHRISTIAN.
A man had a right to enter by virtue of his deed and hold the premises against his grantor by force of the statute, and as no other person had any legal title or claim, he could maintain that right against all mankind. French v. Gray, 2 Conn. 99 Day (1816).
and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no other title can be fornied. (15)
The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on its side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil, right. It is true, that the transmission of one's possessions to posterity has an evident tendency to make a man a good citizen and a useful member of society; it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that its immediate original arose not from speculations altogether so delicate and refined, and, if not from fortuitous circumstances, at least from a
plainer and more simple principle. A man's children or nearest *12] relations are usually about him on his *death-bed, and are the earliest
witnesses of his decease. They become therefore generally the next immediate occupants, till at length in process of time this frequent usage ripened into general law. And therefore also in the earliest ages, on failure of children, a man's servants born under his roof were allowed to be his heirs; being immediately on the spot when he died. For we find the old patriarch Abraham expressly declaring that, "since God had given him no seed, his steward Eliezer, one born in his house, was his heir."(1)(16)
(1) Gen. xv. 3.
(15) The doctrine of escheats prevails throughout the United States. “ The State takes to herself all the lands of which any person shall die seised of an inheritance, intestate and without any known heir. See Code c. 69.". Cunningham v. Brown, 39 W. Va. 588, 592 (1894). See also Hinkle's Lessee v. Shadden, 2 Swan. 49 (Tenn. 1852). It prevails, of course, in Canada. See Att'y-Gen'l v. O'Reilly, 26 Chan. Rep. Ont. 126, 128 (1878).
(16) Mr. Christian does not agree with these views, and expresses himself as follows: “I cannot agree with the learned commentator that the permanent right of property vested in the ancestor himself (that is, for his life) is not a natural, but merely a civil right. The affection of parents towards their children is the most powerful and universal principle which nature has planted in the human breast; and it cannot be conceived, even in the most savage state, that any one is so destitute of that affection and of reason, who would not revolt at the position that a stranger has as good a right as his children to the property of a deceased parent.
“Haeredes successoresque sui cinque libere [Every man's children are his heirs and successors) seems not to have been confined to the woods of Germany, but to be one of the first laws in the code of nature; though positive institutions may have thought it prudent to leave the parent the full disposition of his property after his death, or to regulate the shares of the children when the parent's will is unknown. In the earliest history of mankind we have express authority that this is agreeable to the will of God Himself;—' And behold, the word of God came unto Abraham saying, This shall not be thine heir; but he that shall come out of thine own bowels shall be thine heir. Gen.
Mr. Pingrey agrees with Mr. Christian in these words: “The doctrine that children have no better right by nature than strangers, and that the preference given to the chil. dren to succeed to the property of their deceased parents originated solely in political establishment is not sound." And in support of his views he also cites the Bible: “And Isaac, after ninety years, reclaimed his father's property, and, after much contention
While property continued only for life, testaments were useless and unknown: and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will; till at length it was found, that so strict a rule of inheritance made heirs disobedient and headstrong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced pretty generally the right of disposing of one's property, or a part of it, by testament; that is, by written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased, which we therefore emphatically style his will. This was established in some countries much later than in others. With us in England, till modern times, a man could only dispose of onethird of his movables from his wife and children; and, in general, no will was permitted of lands till the reign of Henry the Eighth; and then only of a certain portion: for it was not till after the restoration that the power of devising real property became so universal as at present. (17)
Wills therefore and testaments, rights of inheritance and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid: neither does any thing vary more than the right of inheritance under different *national establishments.(18) In England particularly, this diversity [*13 is carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be, that has not its foundation in the positive rules of the state. In personal estates the father may succeed to his children; in landed property he never can be their immediate heir, by any the remotest possibility:(19) in general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance: in real estates males are preferred to females, and the eldest male will usually exclude the rest; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.
This one consideration may help to remove the scruples of many wellmeaning persons who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his
with the Philistines, gained possession and held it.” I Pingrey on Real Property, 29 (1895).
In several instances, however, American courts have concurred in the opinion expressed in the text: "All rights to property are founded upon and regulated by the laws of the land. They are all derivative, depending upon political establishments, not natural, but civil rights.” Burroughs v. Housatonic R. R. Co., 15 Conn. 129 (1842). “There is no such thing as a natural line of inheritance independent of the law." Crane v. Reeder, 21 Mich. 73 (1870). “Descent is a creature of statute, and not a natural right." State v. Hamlin, 86 Me. 495, 505 (1894). With these the present editor concurs. All law has its foundation in public policy.
(17) By 32 Hen. VIII. C. 1, all socage lands were made devisable, and two-thirds of lands of military tenure. When these, at the restoration, were converted into socage tenure, all lands became devisable, some copyholds excepted.-CHRISTIAN.
“In the United States it is believed that this power (of devising) will be found only as the result of legislation.” Gillis v. Weller, 10 Ohio, 464 (1847). And "the legislature may so regulate the law of descents and may deny the power of disposition by will as to prevent the bounty of our parents.” Sturgis v. Ewing, 18 Ill. 186 (1856).
“In Pennsylvania lands must pass by will, deed, or some writing signed by the parties, or by the act or operation of the law." Thompson v. White, 1 Dall
. 449 (Pa. 1789). (18) 1 Lomax's Digest of the Laws of Real Property, sect. 574 (1839).
(19) By the statute of 3 & 4 Williamı IV. c. 106, it was enacted that every lineal ancestor should be capable of being heir to any of his issue, and be preferred to collaterals. Similar statutes also exist in the United States.
estate to a stranger, there are many who consider this proceeding as contrary to natural justice; while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the son had by nature a right to succeed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and,
in defect of such appointment, to go to some particular person, who *14] from the result *of certain local constitutions, appears to be the heir at
law. Hence it follows, that where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed: and, where the necessary requisites are omitted, the right of the heir is equally strong, and built upon as solid a foundation, as the right of the devisee would have been, supposing such requisites were observed.
But, after all, there are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had; and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences:(20) such also are the generality of those animals which are said to be fera natura, or of a wild and untamable disposition; which any man may seize
and keep for his own use and pleasure.(21) All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy then afterwards.(22)
Again: there are other things in which a permanent property may subsist, not only as to the temporary use, but also the solid substance; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands; such also are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished
from the rest by the well-known appellation of game. With regard to *15] these and some others, as disturbances and quarrels *would frequently
arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissension, by vesting the things themselves in the sovereign of the state:
(20) Graham v. Burr, 4 Chan. Rep. Up. Can. 1, 6 (1853).
(21) Wild animals furnish the only distinct class of chattels whose ownership could possibly have been made the subject of primitive occupancy: 2 Schoul. Pers. Prop. & 17 (2 ed. 1884). This right may be abridged by statute as in the case of "game laws." Schoul. Pers. Prop. 17, n. (2 ed. 1884).
(22) The doctrine of appropriation, so-called, is not the doctrine of the common law. Lux v. Haggin, 69 Cal. 387. All persons cannot enjoy the boon alike, much depends upon first appropriation. One man's possession may exclude others from it. Woodman v. Pitman, 79 Me. 458 (1887).
or else in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.(23)
OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS.
The objects of dominion or property are things, as contradistinguished from persons: and things are by the law of England distributed into two kinds; things real and things personal. Things real are such as are permanent, fixed, and immovable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other movables; which may attend the owner's person wherever he thinks proper to go.(1)
(23) The king of England had power to grant not only the whole soil of a newly discovered country (America), but certain parts of his royal prerogative. Arnold v. Mundy, 1 Hal. Law (N. J.) 1 (81) 1821, Bossell, J.
(1) Binn's Justice, 82, 83 (10 ed. Brightly, 1895). Brantly on Personal Property, 88 4, 5 and note (1891). Long on Sales, 2 (2 Am. ed. 1839). I Śchouler's Personal Property, 8.46 (2 ed. 1884). In the Scotch law, property is divided into “heritable” and able." i Washburn on Real Property, 3 (5 ed. 1887).
Mr. Stephen justly remarks that it is more correct and convenient to keep separate the idea of the subjects in which property may be acquired from the idea of the estate or interest that may be acquired in these subjects. There is a distinction between things and the estate in things. Things real are land, structure thereon, fixtures thereto, and rights issuing out of, annexed to, or exercisable within, land. There may be a personal estate in a thing real, as a term of years, a mortgage, etc. Real estate is such an interest, not held as merely collateral to a debt or personal duty, in a thing real, as is of uncertain duration and which by possibility may last for life. There cannot be a real estate in a thing personal. . Sir Richard Pepper Arden, in Buckeridge v. Ingram, 2 Ves. Jr. 651, has given a definition of real property which has been followed by the Supreme Court of Pennsylvania in the case of Meason's Estate, 4 Watts, 346. Wherever a perpetual inheritance is granted which arises out of land, or is in any degree connected with it, or, as it is emphatically expressed by lord Coke, exercisable within it, it is that sort of property which the law denominates real property.” This definition, though true as far as it goes, is yet not entirely accurate. There is certainly no reason for confining it to the case of a perpetual inheritance. Surely an estate for life in land is real estate. It is not every interest in it which is. A chattel real is personal estate. It will not do to substitute "interests for an indefinite or uncertain duration" for the words “perpetual inher. itance," without more; because the estates of tenants by statute merchant, statute staple, and elegit, though of this character, are chattels, and not freeholds. A mortgage, though giving an interest in real estate even in fee-simple, and which may, by proceedings at law or in equity, be converted into an absolute indefeasible estate, is nothing, for all practicable purposes, but a chattel. It is to be remarked, however, that these instances are all cases in which the estates are held as mere security for debts and follow the nature of the debts to which they are accessory.
When the owner of land has by his will, or by a trust, directed that it shall be sold for money, courts of equity, which always consider that as actually done which ought to be done, will treat the land so directed to be sold as money; and so, vice versa, money directed to be laid out in land will in equity be considered as land.
An interest in realty, by being mingled in an undistinguished mass of property held in common with personalty, may have the latter character impressed upon it. Thus, shares of stock in a bank or other corporation are personal estate, without reference to the nature of the subjects in which these shares give an interest. This is the general doctrine of American law. 2 Kent, 340, n. In England, shares in companies associated