donatio causa mortis complete or perfect.' But acceptance may be presumed in cases where it would be beneficial to the donee.2 Thus § 1337. Other Requisites. The gift does not (like a legacy) require witnesses. Nor is there any limitation to the amount of property one may so dispose of. a married woman's gifts causa mortis are not limited by the statutory limit as to the amount of property she may leave by will. The title to a gift causa mortis passes by the delivery, defeasable only in the lifetime of the donor. A donatio causa mortis is of the nature of a legacy. It becomes valid only upon the decease of the donor. If a will is made after a donatio causa mortis, the donatio is set aside. A gift by a man in his last sickness to a person in attendance upon him will be viewed with suspicion, and will not be sustained without full and conclusive evidence.9 § 1338. Other Methods of Obtaining Title to Chattels. Other methods of obtaining title to chattels are discussed in other portions of this work.10 Delmotte v. Taylor, 1 Redf. 417; Armitage v. Wedoe, 36 Mich. 124; De Levillain v. Evans, 39 Cal. 120. 2 Goss v. Singleton, 2 Head, 67; 3 Irish v. Nutting, 47 Barb. 370. But see 5 Marshall v. Berry, 13 Allen, 43. Emery v. Clough, 63 N. H. 552; 56 Am. Rep. 543. 7 Jones v. Brown, 34 N. H. 439. 130. 10 As to the right to the increase of animals and the rights of the finders of lost animals and estrays, see the chapter on Animals, post; as to stolen chattels, see Contracts; as to lost or stolen bills and notes and other negotiable instrnments, see Negotiable Instruments; as to title by purchase and sale, see Contracts; as to title by descent and devise, see the titles Wills and Descent. § 1353. Other kinds of chattels. § 1339. The Different Kinds of Personal Property Chattels Real and Chattels Personal- Corporeal and Incorporeal. - Personal property may be properly said to embrace all things which may be the subject of ownership, except real estate. It has two well-defined divisions, viz., chattels real and chattels personal. Chattels real are interests in land which are less than a freehold,such, for example, as a lease of real estate for a number of years.1 Under this Chattels personal take in a wide range. designation fall all movables of every description; all those articles and things which the owner may carry with him from place to place;2 all kinds of goods, wares, and merchandise which may be vended, worn, or consumed; animals, articles of use and ornament, the stove in a man's house, the desk in his office, the pen with which 1 See post, Division III., Landlord and Tenant. 2 McLean v. Hardin, 3 Jones Eq, 294; 69 Am. Dec. 740. he writes his letters, the ring on his finger, the watch in his pocket, the goods on his shelves, the money in his till, these are chattels personal. So are all debts and demands, the bills of a bank, the notes of a debtor, an annuity, a legacy, a loan, a share of stock in a corporation, - everything, in fact, which is a lawful demand, and is not a piece of the ground.1 Chattels personal are of two kinds, namely, corporeal and incorporeal. Such things as one may see and touch are corporeal chattels; such as one cannot see and touch are incorporeal. The former are things; the latter are only rights. The common law, to distinguished between these two classes of chattels, more frequently uses the terms "choses in possession" and "choses in action."" § 1340. Animals. - Animals are chattels personal, and are subject to most of the rules of law governing other species of personalty.3 § 1341. Annuities. A personal annuity—that is, the right to receive a periodical payment of money charged upon personal estate-is a species of incorporeal chattel personal. A personal annuity given by will is governed by the rules applicable to a devise of realty. A promise to pay an annuity in consideration of forbearance to sue the personal representatives of the grantor is binding, and may be enforced against the promisor. An annuity given by a will for the life of the annuitant, to be paid by the executors quarterly, but not charged upon the income merely, is valid. An annuity is often purchased, instead of being a gift; in such cases, it has been 1 As to animals, see the next title, Animals; as to demands, choses in action, etc., see Title Contracts, post; as to negotiable paper, see Title Negotiable Instruments; as to shares of stock, see Title Corporations, ante, Division I. 21 Schouler on Personal Property, secs. 46-58. 3 See post, Title Animals. 1 Schouler on Personal Property, sec. 66. 5 Bradhurst v. Bradhurst, 1 Paige, 331. 6 Horton v. Cook, 10 Watts, 124; 36 Am. Dec. 151. 7 Gott v. Cook, 7 Paige, 521. held that inequality of price will not make the transaction usurious.1 An annuity payable quarterly, or at other periods, is not apportionable if the annuitant dies in the middle of a quarter or other period. Where there is no instructions as to when an annuity is to be paid, it is payable at the end of the year. Where an annuity is bequeathed payable out of the income of the estate, and the income fails, the principal must be resorted to.* 3 ILLUSTRATIONS.-A testatrix bequeathed the residue of her estate in trust for the benefit of her sister, the interest accruing from the same to be paid over to her every six months during her life. Held, that said sister took the interest of the residue from the death of the testatrix: Weld v. Putnam, 70 Me. 209. A provision in a will was for the payment of "five hundred dollars per year, for ten years, to" B, in equal quarterly installments. Held, to be an annuity contingent on B's life, and not a legacy of five thousand dollars payable in installments: Bates v. Barry, 125 Mass. 83; 28 Am. Rep. 207. An annuity was given by will to the wife of the testator, payable on the first day of March, and the testator died in August. Held, that the annuitant was entitled to the full annuity on the first day of the following March: McLemore v. Blocker, 1 Harp. Eq. 272. A testator died in September, having bequeathed "A five hundred dollars annuity," to be paid "on the first day of March in every year." Held, that upon the first day of March following the testator's death, the annuitant was entitled to a part of the annuity proportioned to the time elapsed after the testator's death: Waring v. Purcell, 1 Hill Ch. 193. A testator made his wife his residuary legatee, adding, "It is further my will and desire that" she pay "to my nephew L., for the purpose of educating him," commencing at a specified date, two hundred dollars "annually until said L. is of age." L. died two years afterwards, before arriving of age. Held, that the legacy ceased at L.'s death: Anderson v. Hammond, 2 Lea, 281; 31 Am. Rep. 612. § 1342. Copyrights, Trade-marks, and Patents.-Copyrights, trade-marks, and patents are chattels personal.5 1 Lloyd v. Scott, 4 Pet. 205. 2 Wiggin v. Swett, 6 Met. 194; 39 Am. Dec. 716; Heizer v. Heizer, 71 Ind. 526; 36 Am. Rep. 202; Tracy v. Strong, 2 Conn. 657. Aliter by statute: Irving v. Rankine, 20 N. Y. Sup. Ct. 147. 3 Hall 267. 274. v. Hall, 2 McCord Ch. Delaney v. Van Aulen, 21 Hun, 5 See post, Title Copyrights, Trademarks, and Patents. § 1343. Corpses-Dead Bodies-Burial — Cemeteries.— It is generally held that a corpse is not a subject of property, nor can replevin be maintained for it.' But the relatives of a dead person have certain rights over the body which equity recognizes and will enforce. The duty devolves on a man's executor to bury him in a manner suitable to his estate and means. As to the manner and form of the burial, the executor should obey the expressed reasonable wishes of the testator as to the disposition of the remains, even if it is not in accordance with the wishes of the next of kin. Where there is no expressed wish of a deceased as to the disposition of his remains, the wishes of the surviving husband or widow shall control, as against the next of kin. If a husband consented to the burial of his wife in a lot owned by another, but not freely, nor with the intention or understanding that it should be permanent, a court of equity may permit 1 State v. Doepke, 68 Mo. 208; 30 Am. Rep. 785; Secor v. Secor, 31 Leg. Int. 268; Griffith v. R. R. Co., 23 S. C. 25; 55 Am. Rep. 1. It has been held in Indiana (Bogert v. Indianapolis, 13 Ind. 138) that the bodies of the dead belong to the surviving relations, in the order of inheritance, as property, and that they have the right to dispose of them as property within restrictions analogous to those by which the disposition of other property may be regulated. And see In re Beekman Street, 4 Bradf. 504. 2 In Pierce v. Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667, the court say: Although the body is not property in the usually recognized sense of the word, yet we may consider it as a sort of quasi property, to which certain persons may have rights, as they have duties to perform toward it arising out of our common humanity. But the person having charge of it cannot be considered as the owner of it in any sense whatever; he holds it only as a sacred trust for the benefit of all who may, from family or friendship, have an interest in it, and we think that a court of equity may well regulate it as such, and change the custody if improperly managed. So in the case of custody of children, certain persons are prima facie entitled to their custody, yet the court will interfere and regulate it. We think these analogies furnish a rule for such a case, and one which will probably do most complete justice, as the court could always interfere in case of improper conduct, e. g., preventing other relatives from visiting the place for the purpose of indulgence of feeling or testifying their respect or affection for the deceased." |