*

When one

prise requisite to conduct the business with success. joint partner in trade or in agriculture dies, his interest or share in the concern does not survive, but goes to his personal representatives. (f) Subject to these exceptions, a gift or grant of a chattel interest to two or more persons creates a joint tenancy; and a joint tenant, it is said, may lawfully dispose of the whole property. (g) In legacies of chattels the courts *351 at one time leaned against any construction tending to support a joint tenancy in them, and testators were presumed to have intended to confer legacies in the most advantageous manner. (a) But in Campbell v. Campbell, (b) the master of the rolls reviewed the cases, and concluded that where a legacy was given to two or more persons, they would take a joint tenancy, unless the will contained words to show that the testator intended a severance

(f) Co. Litt. 182, a; Noy, 55; Jeffreys v. Small, 1 Vern. 217; Elliott v. Brown, cited in Raithby's note to 1 Vern. 217.

(g) Best., J., in Barton v. Williams, 5 B. & Ald. 395. If this dictum be not confined to joint tenancy in merchandise, where it undoubtedly applies, it must, at least, be restricted to chattel interests. A sale in market overt of a chattel by one joint tenant changes the property at once as against the other joint tenant. A joint tenant of an estate can only convey his part; and if he should levy a fine of the whole estate, or convey it by bargain and sale, it would only reach his interest, and amount to a severance of the joint tenancy. Co. Litt. 186, a; Comm. Dig. tit. Estates, K. 6; Ford v. Lord Grey, 6 Mod. 44; 1 Salk. 286; 2 Ohio, 112. See also, infra, iv. 359, 360, note. If one tenant in common of a chattel sells the share of his cotenant, as well as his own, he is answerable in trover. Wilson v. Reed, 3 Johns. 175; Hyde v. Stone, 7 Wend. 354; White v. Osborn, 21 id. 72. It is a conversion as to the share of the other. Parke, B., 1 M. & W. 685. But one tenant in common of a chattel cannot bring trover against his cotenant for dispossessing him, for each has an equal right to the possession; though for the loss or destruction, or sale of the whole chattel by one of the cotenants, an action of trover will lie against him by the other. Litt. sec. 323; Co. Litt. 200, a; Wilson v. Reed, ubi supra; Fennings v. Grenville, 1 Taunt. 241; Barton v. Williams, 5 B. & Ald. 395; Farr v. Smith, 9 Wend. 338; Lucas v. Wasson, 3 Dev. 398; Cole v. Terry, 2 Dev. & Battle, 252; Herrin v. Eaton, 13 Me. 192; Mersereau v. Norton, 15 Johns. 179. In Waddell v. Cook, 2 Hill, 47, it was held that trover (but not trespass) would lie by one cotenant of goods against another who sells the whole interest in the chattels. One tenant in common of personal property can sell his own share only. Bradley . Boynton, 22 Me. 287. If he sells the whole interest in the common property, the vendee of the original cotenant cannot be sued while in possession. The person in possession under such sale is a cotenant with the rightful owner. The remedy is in trover against the cotenant, whoever he may be, who sells the whole subject as for a conversion of the share of the other owner. Dain v. Cowing, íb. 347. A joint owner of a chattel is bound to bestow upon its preservation that care which a prudent man ordinarily bestows upon his property. Guillot v. Dossat, 4 Martin (La.), 203.

(a) Perkins v. Baynton, 1 Bro. C. C. 118.

(b) 4 Bro. 15.

of the interest, and to take away the right of survivorship. This same rule of construction has been declared and followed in the subsequent cases. (c)

4. Rights in Action. Another very leading distinction, in respect to goods and chattels, is the distribution of them into things in possession and things in action. The latter are personal rights not reduced to possession, but recoverable by suit at law. Money due on bond, note, or other contract, damages due for breach of covenant, for the detention of chattels, or for torts, are included under this general head or title of things in action. It embraces the most diffusive, and, in this commercial age, the most useful, learning in the law. By far the greatest part of the questions arising in the intercourse of social life, or which are litigated in the courts of justice, are to be referred to this head of personal rights in action.

* 352

5. Chattel Interest in Remainder. * Chattels may be limited over by way of remainder, after a life in them is created, though not after a gift of the absolute property. The law was very early settled, that chattels real might be so limited by will. (a) A chattel personal may also be given by will (and it is said that the limitation may also be equally by deed), (b) (c) Morley v. Bird, 3 Ves. 628; Crooke v. De Vandes, 9 id. 197; Jackson v. Jackson, ib. 591.

(a) Manning's Case, 8 Co. 95; Lampet's Case, 10 Co. 46; Child ». Baylie, Cro. Jac. 459.

(b) 2 Bl. Comm. 398; Langworthy v. Chadwick, 13 Conn. 42. The cases are generally upon wills; but in Child v. Baylie, Cro. Jac. 459, the court speaks of such a remainder as being created equally by grant or devise. In Powell v. Brown, S. C. Law Journal, No. 3, 442, it was held that a limitation over of a personal chattel by deed was good, though it was not by way of executory trust or a conveyance to uses. See also Powell v. Brown, 1 Bailey (S. C.), 100. But if the limitation in remainder, after a life estate in personalty, be not by executory devise, it can only be by conveyance in trust. Betty v. Moore, 1 Dana (Ky.), 237. So, in Morrow v. Williams, 3 Dev. (N. C.) 263, it was said to be a settled rule in North Carolina, that a remainder in chattels, after a life estate, could not be created by deed. In Rathbone v. Dyckman, 3 Paige, 1, it was held that a limitation over of personal estate to A. in case of the death of B. without lawful issue, was valid; for the N. Y. Rev. Stats. i. 724, sec. 22, 773, sec. 2, have declared, that the words dying without issue mean issue living at the death of the first taker. See infra, iv. 283. In the English chancery, in bequests of chattel interests, the words living at the time of the testator's death are often supplied by intendment, to avoid uncertainty. Thus, a bequest to the children of A. or a legacy to A. for life, and then to the children of B., the law, in the case of real estates, restricts the bounty to the children living at the death of A. or B., as the case may be. Equity will not presume that a party who is not in esse is intended, unless such intention be manifest. Bartleman v. Murchison, 2 Russ. & My. 136.

to A. for life, with the remainder over to B., and the limitation over, after the life interest in the chattel has expired, is good. At common law there could be no limitation over of a chattel, but a gift for life carried the absolute interest. Then a distinction was taken between the use and the property, and it was held that the use might be given to one for life, and the property afterwards to another, though the devise over of the chattel itself would be void. (e) It was finally settled that there was nothing in that distinction, and that a gift for life of a chattel was a gift of the use only, and the remainder over was good as an executory devise. (d) This limitation over in remainder is good as to every species of chattels of a durable nature; and there is no difference in that respect between money and any other chattel interest. The general doctrine is established by numerous English equity decisions, (e) and it has been very extensively recognized and adopted as the existing rule of law in this country; but not until the questions had been very ably

* and thoroughly discussed, particularly in the Supreme * 353 Court of Errors of the State of Connecticut. (a)

(c) 37 Hen. VI., abridged in Bro. tit. Devise, pl. 13; Hastings v. Douglass, Cro. Car. 343.

(d) Hyde v. Parrat, 1 P. Wms. 1. It has been frequently held, Mr. J. Buller observed, in Doe v. Perryn, 3 T. R. 484, that the words dying without issue mean without issue at the time of the death of the party, in cases of personal property, though it be not so in the limitation of freehold estates.

(e) Smith . Clever, 2 Vern. 59; Hyde v. Parrat, 1 P. Wms. 1; Tissen v. Tissen, ib. 500; Pleydell v. Pleydell, ib. 748; Porter v. Tournay, 3 Ves. 311; Randall v. Russell, 3 Meriv. 190.

(a) Moffat v. Strong, 10 Johns. 12; Westcott v. Cady, 5 Johns. Ch. 334; Griggs v. Dodge, 2 Day, 23; Taber v. Packwood, ib. 52; Scott v. Price, 2 Serg. & R. 59; Deihl v. King, 6 id. 29; Royall v. Eppes, 2 Munf. 479; Mortimer v. Moffatt, 4 Hen. & Munf. 503; Logan v. Ladson, 1 Desaus. 271; Geiger v. Brown, 4 M Cord, 427; Brummet v. Barber, Hill (S. C.), 543. By the N. Y. Revised Statutes, i. 773, sec. 1-5, the abso lute ownership of personal property cannot be suspended by any limitation or condition for a longer period than two lives in being at the date of the instrument creating it, or if by will, in being at the death of the testator. The accumulation of the interest or profits of personal property may be made as aforesaid, to commence from the date of the instrument, or from the death of the person executing the same, for the benefit of one or more minors then in being, and to terminate at the expiration of their minority; and if directed to commence at a period subsequent to the date of the instrument or death of the person executing it, the period must be during the minority of the persons to be benefited, and terminate at the expiration of their minority. All directions for accumulation contrary hereto are void; and, for a longer term than such minority, are void as to the excess of time. But if a minor, for whose benefit a valid accumulation of interests or profits is directed, be destitute, the chancellor may VOL. II.-31 [481]

There is an exception to the rule in the case of a bequest of specific things, as, for instance, corn, hay, and fruits, of which the use consists in the consumption. The gift of such articles for life is, in most cases, of necessity, a gift of the absolute property; for the use and the property cannot exist separately. (b) If not

apply a suitable sum from the accumulated moneys for his relief, as to support or education. See infra, iv. 286, the regulation of the accumulation of the income of real estates; and see Vail v. Vail, 4 Paige, 317, where it was held, that if the trust of accumulation of income of personal estate be void under the statute, such income goes as unbequeathed property. Whenever the proceeds of personal property are not validly disposed of by the testator, they are to be distributed, as of course, to the widow and next of kin. The N. Y. Revised Statutes have not defined the objects for which express trusts of personal estate may be created, as has been the case in relation to trusts of real estate. (Infra, iv. 310.) They may, therefore, be created for any purposes which are not illegal; and except as to the mere vesting of the legal title to the property in the trustee, instead of the cestui que trust, the conveyance or bequest of personal property is governed by the same rules applicable to a grant or devise of a similar interest in real property. The Revised Statutes, i. 773, tit. 4, restrict, as above stated, the power of suspending the right of alienation of personal property, and the right of accumulation within similar limits. Gott v. Cook, 7 Paige, 534, 535. In all other respects limitations of future or contingent personal estates are the same as if the subject was real estate. Hone v. Van Schaick, 7 Paige, 222; Kane v. Gott, 24 Wend. 641. The N. Y. Revised Statutes, concerning uses and trusts, are confined to real property. They do not interfere with the mere appropriation of the fund as to personal property, and only as to limitations of future or contingent interest therein; for if the limitation be on a contingency, it must be confined within certain boundaries of time, otherwise you run into an objectionable perpetuity. The rules of real property are not impressed upon personal property, except as to future contingent limitations. See the remarks of Mr. Justice Cowen on this subject in Kane v. Gott, ut supra, 662, 663, 666 If personal estate be vested in trustees upon various trusts, some being valid and others void, the court will sustain the valid ones if they can be separated from those which are illegal. Van Vechten v. Van Vechten, 8 Paige, 105.

The testator may direct the payment of legacies out of the income of the estate by anticipation. He may bequeath the same as a future estate undiminished in amount, subject to the rules against perpetuities. He may carve such intermediate interests, estates, and portions out of the income, in the mean time, as he pleases, if it can be done without an actual accumulation of the rents and profits for that purpose. But an accumulation of rents and profits for the purpose of raising a legacy or portion at a future day is not permitted in New York, except such legacy or portion be for the sole benefit of a minor in existence when the accumulation commences. N. Y. R. S. i. 726, sec. 37, 38; ib. 773, sec. 3, 4.

(b) Randall v. Russell, 3 Meriv. 194; Evans v. Iglehart, 6 Gill & J. 171; Henderson v. Vaulx, 10 Yerg. 30. If the specific personal property bequeathed for life, with remainder over, be capable of increase, as cattle, &c., the tenant for life, taking the increase to himself, is bound to keep up the number of the original stock. 1 Domat, b. 1, tit. 11, sec. 5. But if the animals do not produce young ones, the tenant for life, called the usufructuary in the civil law, is not bound to supply the place of those that die without his fault. Ib. sec. 6. In the southern states slaves may be

specifically given, but generally as goods and chattels with remainder over, the tenant for life is bound to convert them into money, and save the principal for the remainderman. (c) It is a general principle, that where any interest short of absolute ownership is given in the general residue of personal estate, terms for years and other perishable funds of property which may be consumed in the use, are to be converted or invested, so as to produce a permanent capital, and the income thereof only is to go to the residuary legatee. (d) There cannot be any estate tail in a chattel interest, unless in very special cases, for that would lead to a perpetuity, and no remainder over can be permitted on such a limitation. (e) It is a settled rule that the same words which, under the English law, would create

an estate tail as to freeholds, give the absolute interest * 354 as to chattels. (a)

The interest of the party in remainder in chattels is precarious, because another has an interest in possession; and chattels, by their very nature, are exposed to abuse, loss, and destruction. (b) It was understood to be the old rule in chancery, (c) that the person entitled in remainder could call for security from the tenant for life, that the property should be forthcoming at his decease, for equity regards the tenant for life as a trustee for the remainderman; but that practice has been overruled. (d) Lord bequeathed for life and remainder over, and the tenant for life is bound in equity to account for them. Horry v. Glover, 2 Hill (S. C.), Ch. 520. Though property be of a perishable nature, it may, when the case will admit of it, be bequeathed to A. for life, with remainder over; but as such property becomes less valuable from year to year, it may, under the direction of chancery, be converted into government stock, for the protection of the remainderman. 4 Russell, 200.

(c) Patterson v. Devlin, 1 M'Mullan (S. C.), 459. The rights of the tenant for life and of the remainderman, in perishable articles, and in other things which deteriorate or wear out by use and time, are discussed at large in that case, and many illustrations given and distinctions stated.

(d) Howe ». Earl of Dartmouth, 7 Ves. 137; Fearns v. Young, 9 id. 549. (e) Dyer, 7, pl. 8; 2 Bl. Comm. 398.

(a) Seale v. Seale, 1 P. Wms. 290; Chandless v. Price, 3 Ves. 99; Brouncker v. Bagot, 1 Meriv. 271; Tothill v. Pitt, 1 Mad. Ch. 488; Garth v. Baldwin, 2 Ves. 646; Jackson v. Bull, 10 Johns. 19; Paterson v. Ellis, 11 Wend. 259; Moody v. Walker, 3 Ark. 147.

(b) The interest in remainder in a chattel was held, in Allen v. Scurry, 1 Yerg. (Tenn.) 36, not to be the subject of sale on fi. fa., for no delivery could be made by the sheriff. The remainder of a term in a live chattel was a contingent interest.

(c) 2 Freeman, 206, case 280; Bracken v. Bentley, 1 Rep. in Chancery, 59. (d) Foley v. Burnell, 1 Bro. C. C. 279; Sutton v. Craddock, 1 Ired. Eq. (N. C.) 134.