sion and choses in action, and finds it quite unsuitable for application to such modern species of property as shares in stock companies, patents, and copyrights, and the like; and he says that while these are usually spoken of as choses in action "for want of better classification," they are, in fact, personal property of an incorporeal nature..

We intend, therefore, in the present treatise, to contribute, as far as possible, to logical precision, by substituting the distinction of corporeal and incorporeal things personal for that of choses in possession and choses in action; believing, as we do, that we shall thereby do something towards reconciling and harmonizing the two grand divisions of wealth known to the English and American law; and, furthermore, aid in bringing the civil and common law systems of property into something like unity. We shall not, like Mr. Williams, sacrifice consistency to custom, by compromising upon a method of classification, which recognizes one division consisting of choses in possession, a second of choses in action, and a third of incorporeal personal property; "2 for this, in the end, must bring only confusion. But we shall, so far as may be, use the new terms as synonymous with the old; and bring out such points of difference, if any, as may be suggested by a careful comparison of things corporeal and incorporeal with things in possession and things in action.

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§ 16. Meaning of the Terms "Goods," "Effects," "Things," etc. There are some other technical words, besides "chattels and "choses," which the common law has employed with reference to personal property from a very early period. Thus, "goods" is a favorite word, which is used either conjointly with other words, or by itself. The phrase "goods and chattels" is often found in deeds and wills; conveyancers favor it strongly; and, certainly, when placed in contrast with the seemingly corresponding phrase "lands and tenements," it has a pleasant jingling sound. This phrase plainly includes chattels real, and inanimate objects, as indeed does the sin

1 Wms. Pers. Prop. 5th Eng. ed. 6. See also the definition of "Incorporeal Property" in Bouvier's Dict.

VOL. I.

2 See Wms. Pers. Prop. Table of Contents; and cf. ib. pp. 5, 6, 180.

17

gle word "chattels ;" and it is well settled that, if unrestrained, the term "goods and chattels" will pass all personal property under a will. This, we suppose is chiefly attributable to the force of the comprehensive word "chattels." As to the term "goods," standing by itself, the general impression is, that it has a more confined operation in modern times than chattels; that while for most purposes it includes money, furniture, valuable securities, and other mere personal chattels, and is a word of large general signification, it neither embraces chattels real, such as a lease for years of house or land, nor, perhaps, animals, which the word "chattels " certainly would include.2 In a more limited sense the word "goods" is popularly applied to articles of merchandise.3 The civil-law term bona, which corresponds with goods, included all chattels, personal and real alike; and therefore a general bequest of all one's goods will pass a leasehold interest, because the civil law guides in the construction of bequests of personalty; while an assignment, which must be construed according to the rules of the common law, will not, as Sugden thinks, pass a leasehold estate. The corresponding French term biens is said to include property of every description, except estates of freehold and inheritance. Coke must have thought that the word "goods" had an equally sweeping force, for he says: "Goods, biens, bona, includes all chattels, as well real as personal;" and he further adds: "Now goods, or chattels, are either personal or real." And others have treated the two words "goods " and "chattels " as synonymous.7

"Effects" is another word which is often found in the law of chattels. This word is equivalent to property or worldly

1 See 12 Co. 1; 1 Atk. 182; Gower 42 Sugd. Vendors, 9th ed. 201. See v. Gower, Ambl. 612; Wms. Ex'rs, 4 Edw. VI.; Cro. Eliz. 386; 1 P. Wms. 6th Eng. ed. 1095; Bouvier's Dict. 267. "Goods and Chattels ;" Co. Lit. 118 b.

2 Bouvier's Dict. "Goods; " 2 Sugd. Vend. 9th ed. 201; Kendall v. Kendall, 4 Russ. Ch. 370. See Baldwin v. Williams, 3 Met. 367.

32 Bl. Com. 389, Sharswood's n.; Worcester's Dict. "Goods."

5 Bouv. Dict. "Biens."

6 Co. Lit. 118 b.

substance, and, when used with the words "real and personal," it embraces the whole of a testator's real and personal estate; indeed, the word "effects" alone, in a will, may carry the whole of one's personal property; though not the real estate, except in connection with the word "real." It would thus appear that the word "effects" denotes property in a more extensive sense than the word " goods."

"1

But while, under favorable circumstances, the word "chattels," or the word "effects," or even the word "goods," may carry the entire personal property of a testator, it should be remembered that, where general terms are associated with others less comprehensive, in wills, they are sometimes restrained in judicial construction to articles ejusdem generis. And since the fundamental rule applied to the interpretation of last wills and testaments is to make the testator's intention the pole-star, we may sometimes expect to find such sweeping words as "estate," or "property," restrained, so as to apply only to personal property, in like manner, and not to lands and tenements.2

The reader may have already perceived that we make frequent use of the word "things," in treating of our present subject. By this word "things" is understood every object, except man, which may become an active subject of right; in which sense it is opposed, in the language of the law, to the word "persons."3 It may therefore be considered as nearly or quite synonymous, at our later law, with the word "property;" besides being often a more convenient word to apply in legal analysis than the latter, since its singular and plural forms are readily distinguished in composition, and since there are no such variations in its technical meaning as would be likely to produce confusion in the mind of the student.

§ 17. Application of "Estate" to Things Real, and “Property" to Things Personal. An important distinction which is ob

1 See Bouvier's Dict. "Effects;" 2 Bl. Com. 384, Sharswood's n. ; Jackson v. Hogan, 3 Bro. P. C. 388; Campbell v. Prescott, 15 Ves. 507; Cowp. 299; see Rapalje's Law Dict. 83 Penn. St. 126; 6 How. (U. S.) 301.

2 See Jarm. Wills, 3d Eng. ed. 715 et seq.

8 See Bouv. Dict. "Things." And

servable between the two great systems of property known to the common law remains for our present notice; and it is a distinction which should be steadily kept in view by all who seek to understand the exact meaning of legal terms in their investigation of the law relating to things real and personal. From the very nature of the feudal system, it was impossible that one should be, wherever that system continued in force, the absolute owner of lands and tenements. These were, on the contrary, the subject of tenure; that is, they were held, under a lord paramount, and not owned. The sovereign, or chief, divided the lands among his immediate followers, exacting a recompense, in the nature of military service, or supplies, as the case might be; they, in turn, subdivided among their followers, and upon similar conditions. This feudal system moulded the English law of realty; and though the military tenures were abolished at the restoration of King Charles, and most of the absurd exactions of chivalry — which, as may well be supposed, had come down to mere pecuniary assessments were thus done away with, yet names remained, and the ancient theory was in many respects unchanged. Hence is it that the elementary writers still tell us that there is no such thing as property in realty at the common law; that of things real there can be nothing held and enjoyed save an estate; which estate may be for life, in tail, or in fee-simple, according to circumstances, but in any event is an estate and no more.2 Yet, as they say further, the primary rule concerning things personal has always been precisely opposite. These are the subject of actual ownership, and are not held for any estate; one has them as one's own property. However fanciful the distinction may now appear, especially to us of America, who never doubt that a deed of land, to one and his heirs forever, practically conveys the land, as so much property, to the grantee, we must nevertheless accept the theory; and thus we shall perceive why the expression "real estate" is so commonly used in the English tongue, and among unprofessional men, rather than "real property;" though one finds the latter term quite 2 Wms. Real Prop. 9th Eng. ed. 17.

1 See 2 Bl. Com. cs. 5, 6.

convenient when he desires, as the writer in the present chapter, to contrast things real with things personal. We would use the words "personal property" in speaking of goods and chattels, on the other hand, more commonly than the words "personal estate," for a corresponding reason; though, in a last will and testament, where dispositions under the two great classes of property have to be constantly brought together, the phrase "personal estate" is not unfrequently used as usually in administration. So, too, if we take up some old writer, Coke, for instance, we find him defining the word "estate" as an inheritance, a freehold, term for years, or the like, in lands or tenements, without referring to chattels.1

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But we must not be tied down too closely to words in their ancient significance; suffice it that we hold to the correct modern idea. The word "estate" is doubtless used in a broad sense, in these days, to denote both things real and things personal; and the same may be said of the word property." Consulting our own convenience in a reasonable degree, we shall use the words somewhat indiscriminately; not forgetting, however, as the reader should not, -that the more technical and limited application of the word "estate" is to things real, while that of the word "property" is to things personal; for upon this distinction are founded some curious and interesting doctrines.2

§ 18. Classification into Real or Personal affected by Modern Legislation. It should be further observed, however, at the outset, that while at the common law one thing may be real and another personal per se, the classification is frequently affected, in this day, by statutes. Thus, in Massachusetts, a term of years, so long as fifty years or more remain, is made subject to the incidents of freehold estate, by legislative authority. So, on the other hand, stock in canal, railway, and land companies, which the law was formerly disposed to treat as real estate, are usually in this country made personal prop

1 1 Co. Lit. 487.

2 See Bouv. Dict. "Estate; " Wms. Pers. Prop. 3d Eng. ed. 7, 8.

3 Mass. Pub. Stats. 1882, c. 121, § 1.