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may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir.(I) But though the heir has a property in tho monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. The parson, indeed, who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it; and if any one in taking up a dead body steals the shroud or other apparel, it will be felony ;(m) for the property thereof remains in the executor, or whoever was at the charge of the funeral."
But to return to heir-looms; these, though they be mere chattels, yet cannot be devised away from the heir by will; but such a devise is void, (n) even by a tenant in fee-simple. For though the owner might during his life have sold or disposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might mangle or dismember it as he pleased; yet they being at his death instantly vested in the heir, the devise (which is subsequent and not to take effect till after his death) shall be postponed to the custom, whereby they have already descended." (1) 3 Inst. 202. 12 Rep. 105.
(*) 1 Co. Litt. 185. (**) 3 Inst. 110. 12 Rep. 113. 1 Hal. P. C. 515.
disposition of all pews which are not claimed by prescription. Gibs. Cod. 221. See generally, as to the right to pews, 1 Phill. E. C. 316.
In an action upon the case for a disturbance of the enjoyment of a pew, if the plaintiff claims it by prescription, he must state it in the declaration as appurtenant to a messuage in the parish. 5 B. & A. 356. This prescription may be supported by an enjoyment for thirty-six years, and perhaps any time above twenty years. 1 T. R. 428. But where a pew was claimed as appurtenant to an ancient messuage, and it was proved that it had been so annexed for thirty years, but that it had no existence before that time, it was held this modern commencement defeated the prescriptive claim. 5 T. R. 296. In an action against the ordinary the plaintiff must allege and prove repairs of the pew. 1 Wils, 326.—CHRISTIAN.
But a possessory right to a pew is sufficient to sustain a suit in the ecclesiastical court against a mere disturber. 1 Phill. E. C. 316. See further the cases and precedents, 2 Chitty on Pl. 817. Com. Dig. Action on Case for Disturbance, A. 5. 2 Saund. 175, c., d. -CHITTY.
The owner of a pew has a right to the exclusive use of it on all occasions when the church is open, whether for worship or any other purpose, can put a fastening on the door and maintain trespass against any person who enters against his will. Jackson vs. Rounseville, 5 Met. 127. Shaw vs. Beveridge, 3 Hill, 26. If the church be pulled down and rebuilt, the parish or corporation does not subject itself to any liability to the proprietors of pews in the old edifice. Fassett vs. Boylston, 19 Pick. 361. Kellogg vs. Dickinson, 18 Vermont, 266.-SHARSWOOD.
? It has been determined that stealing dead bodies, though for the improvement of the science of anatomy, is an indictable offence as a misdemeanour; it being considered a practice contrary to common decency and shocking to the general sentiments and feelings of mankind. 2 T. R. 733. 2 Leach, 560, S. C.
Though a philosopher may be regardless of his own body after death, yet he must be destitute of the feelings of humanity if he could bear without concern that the body of a beloved wife, daughter, or sister had been exposed to public view and mangled by the dissector's knife.
The principle is well described by Cicero:de humatione unum tenendum est, contemnendam in nobis, non negligendam in nostris ; ita tamen mortuorum corpora nihil sentire intelligamus. Quantum autem consuetudini famæque dandum sit, id curent vivi. Cic. 1 Tusc. n. 108.CHRISTIAN.
8 That is, if the inheritance which they are attached be allowed to descend him; but if that be devised away, the heir-looms, I conceive, would go with it to the devisee. -COLERIDGE.
Co. Litt. 185, 186. The law, as here laid down on the authority of lord Coke, is sup ported by many other authorities, though it has been questioned in Woodd. Vin. Lect. vol. 11, p. 389.
The term of heir-loom is often applied in practice to the case where certain chattels --for example, pictures, plate, or furniture_are directed by will or settlement to follow the limitations thereby made of some family mansion or estate. But the word is not here employed in its strict and proper sense, nor is the disposition itself beyond a cer. tain point effectual; for the articles will in such case belong absolutely to the first person who, under the limitations, would take a vested estate of inheritance in them,
OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. In the present chapter we shall take into consideration three other species of title to goods and chattels.
V. The fifth method therefore of gaining a property in chattels, either personal or real, is by succession: which is, in strictness of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, movables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies : and therefora the predecessors who lived a century ago, and their successors now in being, are one and the same body corporate.(a) Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed; but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists.(6) And thus a lease for years, an *obligation, a jewel, a flock
[*431 of sheep, or other chattel interest, will vest in the successors, by succession, as well as in the identical members to whom it was originally given.
But, with regard to sole corporations, a considerable distinction must be made. For if such sole corporation be the representative of a number of persons; as the master of an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, itho represented the whole convent; or the dean of some antient cathedral, who stands in the place of and represents, in his corporate capacity, the chapter; such sole corporations as these have, in this respect, the same powers as corporations aggregate have, to take personal property or chattels in succession. And therefore a bond to such a master, abbot, or dean, and his successors, is good in law; and the successor shall have the advantage of it, for the benefit of the aggregate socinty of which he is in law the representative.(c) Whereas in the case of sole corporations which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession: and therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successors, shall have it.(d) For the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John bishop of Oxford and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such his successors. The reason of this is obvious : for besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from tha *death of the present owner until the successor be appointed : and
[*432 this is contrary to the nature of a chattel interest, which can never be in abeyance or without an owner;(e) but a man's right therein, when once suspended, is gone forever. This is not the case in corporations aggregate, where the right
(a) 4 Rep. 65.
(d) Co. Litt. 46.
supposing them to be real estate, and, if he dies intestate, will pass to his personal representative and not to his heirs. Gower vs. Grosvenor, Barnard Ch. Rep 54. Co. Litt. oy Hargrave, note 18, b n. 7.-STEPHEN.
18 never in suspense; nor in the other sole corporations before mentioned, who are rather to be considered as heads of an aggregate body, than subsisting merely in their own right: the chattel interest therefore, in such a case, is really and substantially vested in the hospital, convent, chapter, or other aggregate body; though the head is the visible person in whose name every act is carried on, and in whom every interest is therefore said (in point of form) to vest. But the general rule, with regard to corporations merely sole, is this, that no chattel can go to or be acquired by them in right of succession. (f)
Yet to this rule there are two exceptions. One in the case of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors.(9) The other exception is where, by a particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. And this custom, being against the general tenor of the common law, must be strictly interpreted, and not extended to any other chattel interests than such immemorial usage will strictly warrant. Thus, the chamberlain of London, who is a corporation sole, may by the custom of London take bonds and recognizances to himself and his successors, for the benefit of the orphan's fund :(h) but it will not follow from thence that he has a capacity to take a lease for years to himself and his successors for the same purpose; for the custom extends not to that: nor that he may take a bond to himself and his successors, for any other purpose than the benefit of the orphan's fund; for that also is not warranted by the custom. Wherefore, upon the whole, we may close this head with laying down this general rule : that such right of succession
to chattels is *universally inberent by the common law in all aggregate
corporations, in the king, and in such single corporations as represent a number of persons; and may, by special custom, belong to certain other sole corporations for some particular purposes; although generally, in sole corporations, no such right can exist.
VI. A sixth method of acquiring property in goods and chattels is by mar. riage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband, with the same degree of property and the same powers as the wife when sole had over them.
This depends entirely on the notion of a unity of person between the husband and wife; it being held that they are one person in law,(i) so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband. And hence it follows, that whatever personal property belonged to the wife, before marriage, is by marriage absolutely vested in the husband. In a real estate, he only gains a title to the rents and profits during coverture; for that, depending upon feodal principles, remains entire to the wife after the death of her husband, or to her heirs, if she dies before him ; unless, by the birth of a child, he becomes tenant for life by the curtesy. But, in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them: for, unless he reduces them to possession, by exercising some act of ownership upon them, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined.
There is therefore a very considerable difference in the acquisition of this *434]
species of property by the husband, *according to the subject-matter,
viz., whether it be a chattel real or chattel personal; and, of chattels personal, whether it be in possession or in action only. A chattel real vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the hus. band shall receive all the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture:(k) if he be outlawed or attainted, it shall be forfeited to the king :(l) it is liable to execution for hi debts :(m) and, if he survives his wife, it is to all intents and purposes his own.(n) Yet, if he has made no disposition thereof in his lifetime, and dies before
Co. Litt. 46.
9) Ibid. 90,
a) Co. Litt. 46.
See book i. c. 15.
his wife, he cannot dispose of it by will :(o) for, the husband having made nc alteration in the property during his life, it never was transferred from the wife; but after his death she shall remain in her antient possession, and it shall not go to his executors. So it is also of chattels personal (or choses) in action : as debts upon bond, contracts, and the like: these the husband may have if ho pleases; that is, if he reduces them into possession by receiving or recovering them at law. And upon such receipt or recovery they are absolutely and
(°) Poph. 5. Co. Litt. 361.
If a bill or note be made to a feme sole, and she afterwards marry, being possessed of the note, the property vests in the husband, and he may endorse it or sue alone for the recovery of the amount, (3 Wils. 5. 1 B. & A. 218;) for these instruments, when in possession of the wife, are to be considered rather as chattels personal than choses in action. Id. ibid. The transfer of stock into the wife's name, to which she became entitled during the marriage, will not be considered as payment or transfer to her husband, so as to defeat her right by survivorship, (9 Ves. 174.16 Ves. 413 ;) but if it is transferred into his name it is a reduction of it into his possession. 1 Roper's Law of Hus. and Wife, 218. So, if a promissory note be given to the wife, the husband's receipt of the interest thereon will not defeat the right of the wife by survivorship: 2 Mad. 133. But where the husband does and can bring an action for a chose in action of the wife in his own name, and dies after judgment, leaving his wife surviving, his representatives will be entitled. If, however, she is joined, she will be entitled, and may have a scire facias upon such judgment." 1 Vern. 396.2 Ves. Sen. 677. 12 Mod. 346. 3 Lev. 403. Noy, 70. And if previously to marriage she had obtained a judgment, and afterwards she and her husband sued out a scire facias and had an award of execution, and she died before execution, the property would be changed by the award, and belong to the husband as the survivor. 1 Salk. 116. Roper, L. Hus. & Wife, 1 vol. 210.-Chitty.
Where the wife's interest is an equitable one, or where from any circumstances the assistance of a court of equity is required in order to reduce the property into possession, the court will not render its assistance except on the terms of some part, or in some cases the whole, being settled to the use of the wife and children. This is the wife's equity; and this equity has been administered even against the assignees in insolvency of the husband, claiming during the joint lives of the husband and wife the entire benefit of a legal estate vested in the wife for life. Sturgis vs. Champneys, 5 Myl. & C. 97. Hanson vs. Keating, 4 Hare, 1.-KERR.
It is not every reduction to possession which will vest the property absolutely in the husband. The ownership follows the husband's will; for the law will not cast it on him against his consent. Hind's estate, 5 Whart. 138. Barron vs. Barron, 24 Verm. 375. Reduction to possession is in all cases prima facie evidence of conversion to the husband's use, because it is accompanied in a vast majority of cases with that intent; but that presumption of intent, like every other which is founded on experience of the current of human transactions, may be repelled by disproof of the fact in the particular instance. A husband's disclaimer of conversion to his own use at the time of reducing his wife's chose in action to possession may be established by his subsequent admissions ; but they must be clear and positive. Gay's estate, 1 Barr, 327.
The assignment or release of the husband, in order to be effectual to bar the wife's survivorship, must be express and for value. Skinner's Appeal, 5 Barr, 262. Tuttle vs. Fowler, 22 Conn. 58. Where it is as collateral security only for a precedent debt, it will not avail for this purpose. Hartman vs. Dowdell, 1 Rawle, 279. It has been held, too, that a transfer for value is a reduction to possession, whether as to choses presently reducible, reversionary interests, or bare possibilities. Webb's Appeal, 9 Harris, 248.
It is a result of the principles which have been settled on this subject that the choses in action of the wife, not vested in the husband by some act of reduction to possession indicative of the intention to convert them to his own use, cannot be reached or attached for his debts. Dennison vs. High, 2 Watts, 90. Robinson vs. Woelpper, 1 Whart. 179. And although, in an action by the husband alone for his wife's legacy, his bond due to the estate out of which the legacy is payable may be set off, (Wishart vs. Downey, 15 8. & R. 77. Lowman's Appeal, 3 W. & S. 349,) yet where the debt due by the husband is not set off in his lifetime against the legacy or other chose in action of the wife, it cannot be after his death without her consent. Krider vs. Boyer, 10 Watts, 54. Flory vs. Becker, 2 Barr, 471.
The rule is, that if the husband appoints an attorney to receive the money, and he receives it, or if he mortgages the wife's choses in action, or assigns them without reservar tion for a valuable consideration, or if he recovers her debt by a suit in his own name, or if he releases the debt for value or revests it by taking a new security in his own dame,—in all these cases, upon his death, the right of survivorship in the wife to the
entirely his own; and shall go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But if he dies before he has recovered or reduced them into possession, so that at his death they shall continue choses in action, they shall survive to the wife; for the husband never exerted the power he had of obtaining an exclusive property in them.(P). And 80, if an estray comes into the wife's franchise, and the husband seizes it, it is absolutely his property; but if he dies without seizing it, his executors are not now at liberty to seize it, but the wife or her heirs ;(9) for the husband never exerted the right he had, which right determined with the coverture. Thus, in both these species of property the law is the same in case the wife survives the husband; but, in case the husband survives the wife, the law is very different *435]
with respect to chattels real and choses in action : for he shall have *the
chattel real by survivorship, but not the chose in action ;(T) except in the case of arrears for rent due to the wife before her coverture, which in case of her death are given to the husband by statute 32 Hen. VIII. c. 37. And the reason for the general law is this : that the husband is in absolute possession of the chattel real during the coverture, by a kind of joint-tenancy with his wife; wherefore the law will not wrest it out of his har and give it to her representatives; though, in case he had died first, it would have survived to the wife, unless he thought proper in his lifetime to alter the possession. But a chose in action shall not survive to him, because he never was in possession of it at all during the coverture ; and the only method he had to gain possession of it was by suing in his wife's right; but as after her death he cannot (as husband) bring an action in her right, because they are no longer one and the same person in law, therefore he can never (as such) recover the possession. But he still will be entitled to be her administrator, and may, in that capacity, recover such things in action as became due to her before or during the coverture.”
Thus, and upon these reasons, stands the law between husband and wife with regard to chattels real and choses in action : but, as to chattels personal (or choses) in possession, which the wife hath in her own right, as ready money, jewels, household goods, and the like, the husband hath therein an immediate and absolute property devolved to him by the marriage, not only potentially but in fact, which never can again revest in the wife or her representatives.(3)
And, as the husband may thus generally acquire a property in all the persoual substance of the wife, so in one particular instance the wife may acquire a property in some of her husband's goods: which shall remain to her after his death and not go to his executors. These are called her paraphernalia,
*which is a term borrowed from the civil law,(t) and is derived from *136]
the Greek language, signifying something over and above her dower. Our law uses it to signify the apparel and ornaments of the wife, suitable to her rank and degree; and therefore even the jewels of a peeress usually worn
(9) Co. Litt. 351.
Co. Litt. 351.
property ceases. And if the husband obtains a judgment or decree as to money to which he was entitled in right of his wife, and the suit was in his own name alone, the property vests in him by the recovery. If the suit was in their joint names, and he dies before actually receiving the money, the judgment survives to the wife. McDowl vs. Charles, 6 Johns. Ch. Rep. 132. Searing vs. Searing, 9 Paige, 283. A general assignment in bankruptcy, or un insolvent laws, passes the wife's choses ; but if the husband dies before the assignees have reduced them to possession, they survive, for the assignees only stand in the husband's shoes and possess his power. It is different with an assignee for value. Epps vs. Van Deusen, 4 Paige, 64. Mitford vs. Mitford, 9 Ves. 87. Paine vs. Thornely, 2 Simon's Rep. 167. Outrall vs. Van Winkle, 1 Green, N. J. 516. 2 Kent's Com. 137, 138.-SHARSWOOD.
2 By 29 Car. II. c. 3, s. 25, the husband shall have administration of all his wife's personal estate which he did not reduce into his possession before her death, and shall retain it to his own use; but he must first pay his wife's debts before coverture; and if he di vefore administration is granted to him or he has recovered his wife's property, the right to it passes to his personal representative and not to the wife's next of kin. 1 P. Wms 378. '1 Mod. 231.' Butler's Co. Litt. 351. 1 Wils. 168.-Cutty,