Front Page Titles (by Subject) CHAPTER XXIX.: OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XXIX.: OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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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 therefore 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.(b) And thus a lease for years, an *[*431obligation, a jewel, a flock 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, who 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 society 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 the *[*432death of the present owner until the successor be appointed: and 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 is 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.(g) 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 **433]universally inherent 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 marriage; 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 species of property by the husband, **434]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 husband 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 his 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 his wife, he cannot dispose of it by will:(o) for, the husband having made no 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 he pleases; that is, if he reduces them into possession by receiving or recovering them at law.1 And upon such receipt or recovery they are absolutely and 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 so, 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;(q) 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 with respect to chattels real and choses in action: for he shall have **435]the chattel real by survivorship, but not the chose in action;(r) 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 hands, 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.2
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.(s)
And, as the husband may thus generally acquire a property in all the personal 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, **436]which is a term borrowed from the civil law,(t) and is derived from 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 by her have been held to be paraphernalia.(u) These she becomes entitled to at the death of her husband, over and above her jointure or dower, and preferably to all other representatives.(w) Neither can the husband devise by his will such ornaments and jewels of his wife; though during his life perhaps he hath the power (if unkindly inclined to exert it) to sell them or give them away.(x) But if she continues in the use of them till his death, she shall afterwards retain them against his executors and administrators, and all other persons except creditors where there is a deficiency of assets.(y) And her necessary apparel is protected even against the claim of creditors.(z)3
VII. A judgment, in consequence of some suit or action in a court of justice, is frequently the means of vesting the right and property of chattel interests in the prevailing party. And here we must be careful to distinguish between property the right of which is before vested in the party, and of which only possession is recovered by suit or action; and property to which a man before had no determinate title or certain claim, but he gains as well the right as the possession by the process and the judgment of the law. Of the former sort are all debts and choses in action; as if a man gives bond for 20l., or agrees to buy a horse at a stated sum, or takes up goods of a tradesman upon an implied contract to pay as much as they are reasonably worth: in all these cases the right accrues to the creditor, and is completely vested in him, at the time of the bond being sealed, or the contract or agreement made; and the law only gives him a remedy to recover the possession of that right which already in justice belongs to him.4 *[*437But there is also a species of property to which a man has not any claim or title whatsoever, till after suit commenced and judgment obtained in a court of law: where the right and the remedy do not follow each other, as in common cases, but accrue at one and the same time: and where, before judgment had, no man can say that he has any absolute property, either in possession or in action. Of this nature are,
1. Such penalties as are given by particular statutes, to be recovered in an action popular; or, in other words, to be recovered by him or them that will sue for the same. Such as the penalty of 500l. which those persons are by several acts of parliament made liable to forfeit, that, being in particular offices or situations in life, neglect to take the oaths to the government: which penalty is given to him or them that will sue for the same. Now here it is clear that no particular person, A. or B., has any right, claim, or demand, in or upon this penal sum, till after action brought;(a) for he that brings his action, and can bona fide obtain judgment first, will undoubtedly secure a title to it, in exclusion of everybody else. He obtains an inchoate imperfect degree of property, by commencing his suit: but it is not consummated till judgment; for, if any collusion appears, he loses the priority he had gained.(b) But, otherwise, the right so attaches in the first informer, that the king (who before action brought may grant a pardon which shall be a bar to all the world) cannot after suit commenced remit any thing but his own part of the penalty.(c) For by commencing the suit the informer has made the popular action his own private action, and it is not in the power of the crown, or of any thing but parliament, to release the informer’s interest. This therefore is one instance, where a suit and judgment at law are **438]not only the means of recovering, but also of acquiring, property. And what is said of this one penalty is equally true of all others that are given thus at large to a common informer, or to any person that will sue for the same. They are placed, as it were, in a state of nature, accessible by all the king’s subjects, but the acquired right of none of them; open therefore to the first occupant, who declares his intention to possess them by bringing his action; and who carries that intention into execution, by obtaining judgment to recover them.
2. Another species of property, that is acquired and lost by suit and judgment at law, is that of damages given to a man by a jury, as a compensation and satisfaction for some injury sustained; as for a battery, for imprisonment, for slander, or for trespass. Here the plaintiff has no certain demand till after verdict; but, when the jury has assessed his damages, and judgment is given thereupon, whether they amount to twenty pounds or twenty shillings, he instantly acquires, and the defendant loses at the same time, a right to that specific sum. It is true that this is not an acquisition so perfectly original as in the former instance: for here the injured party has unquestionably a vague and indeterminate right to some damages or other the instant he receives the injury; and the verdict of the jurors, and judgment of the court thereupon, do not in this case so properly vest a new title in him, as fix and ascertain the old one; they do not give, but define, the right. But, however, though, strictly speaking, the primary right to a satisfaction for injuries is given by the law of nature, and the suit is only the means of ascertaining and recovering that satisfaction; yet, as the legal proceedings are the only visible means of this acquisition of property, we may fairly enough rank such damages, or satisfaction assessed, under the head of property acquired by suit and judgment at law.
**439]3. Hither also may be referred, upon the same principle, all title to costs and expenses of suit; which are often arbitrary, and rest entirely on the determination of the court, upon weighing all circumstances, both as to the quantum, and also (in the courts of equity especially, and upon motions in the courts of law) whether there shall be any costs at all. These costs, therefore, when given by the court to either party, may be looked upon as an acquisition made by the judgment of law.
[(a) ] 4 Rep. 65.
[(b) ] Bro. Abr. tit. Estates, 90. Cro. Eliz. 464.
[(c) ] Dyer, 48. Cro. Eliz. 464.
[(d) ] Co. Litt. 46.
[(e) ] Brownl. 132.
[(f) ] Co. Litt. 46.
[(g) ] Ibid. 90.
[(h) ] 4 Rep. 65. Cro. Eliz. 682.
[(i) ] See book i. c. 15.
[(k) ] Co. Litt. 46.
[(l) ] Plowd. 263.
[(m) ] Co. Litt. 351.
[(n) ] Ibid. 300.
[(o) ] Poph. 5. Co. Litt. 351.
[1 ] 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 S. & 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 reservation 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 name,—in all these cases, upon his death, the right of survivorship in the wife to the 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 under 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.
[(p) ] Co. Litt. 351.
[(q) ] Ibid.
[(r) ] 3 Mod. 186.
[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 died before 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. [Editor: illegible characer]78 1 Mod. 231. Butler’s Co. Litt. 351. 1 Wils. 168.—Chitty.
[(s) ] Co. Litt. 351.
[(t) ]Ff. 23, 3, 9, 3.
[(u) ] Moor. 213.
[(w) ] Cro. Car. 343. 1 Roll. Abr. 911. 2 Leon. 166.
[(x) ] Noy’s Max. c. 49. Grahme vs. Ld. Londonderry, 24th Nov. 1746. Canc.
[(y) ] 1 P. Wms. 730.
[(z) ] Noy’s Max. c. 49.
[3 ] The husband may dispose absolutely of his wife’s jewels or other paraphernalia in his lifetime, (3 Atk. 394;) and although after his death they are liable to his debts if his personal estate is exhausted, yet the widow may recover from the heir to the amount of what she is obliged to pay in consequence of her husband’s specialty-creditors obtaining payment out of her paraphernalia. 1 P. Wms. 730. 3 Atk. 369, 393.
But she is not entitled to them after his death, if she has barred herself by an agreement before marriage of every thing she could claim out of his personal estate either by the common law or custom. 2 Atk. 642.—Christian.
Where the husband permits the wife to make profit of certain articles for her own use, or in consideration of her supplying the family with particular necessaries, or makes her a yearly allowance for keeping house, the profits or savings will be considered in equity as the wife’s own separate estate, (Sir P. Neal’s case, cited in Herbert vs. Herbert, Prec. Ch. 44. 3 P. Wms. 337. 2 Eq. Ca. Abr. 156, in marg. except as against creditors, Prec. Ch. 297. See also 1 Vern. 244. 2 Vern. 535. 1 Eq. Ca. Abr. 346, pl. 18. 1 Atk. 278;) and she may dispose of her separate estate by anticipation, and her right of alienation is absolute, unless she is expressly restrained by the settlement. Jackson vs. Hobhouse, 2 Meriv. 483. 11 Ves. 222. 1 Ves. Jr. 189. 3 Bro. C. C. 340, S. C. 12 Ves. 501. 14 Ves. 302. A husband’s agreement before marriage that a wife shall have separate property converts him into her trustee, (see 1 Ventr. 193. 29 Ch. II. c. 3, s. 4. 1 Ves. Jr. 196. 12 Ves. 67,) unless by fraud of the husband he prevents the agreement from being reduced to writing. Montacute vs. Maxwell, 1 P. Wms. 620. 1 Stra. 236, S. C.—Chitty.
[4 ] If the owner of a chattel bring an action of trespass or trover against one unlawfully in possession, or, waiving the tort, an action to recover the price or value of it, and recovers judgment, such judgment, while it vests a title to the damages in the plaintiff, operates at the same time as a transfer to the defendant of the plaintiff’s title to the thing. It results from the conclusiveness of the judgment as a bar to any other action by the plaintiff, or any one claiming under him, against the defendant, or those deriving their title through him. The authorities are not harmonious upon the question whether a mere judgment without satisfaction or payment of the amount recovered by the defendant will produce the effect. See 2 Kent’s Com. 388, 389. The learned chancellor expresses the opinion that the negative is the better doctrine. But if the ground of the rule that the judgment transfers the title to the defendant be that before stated in this note, then it is plain that payment or satisfaction of the judgment is not necessary. Nemo debet bis vexari pro eadem causa. A prior judgment, whether paid or not, can be set up as a conclusive bar to any subsequent action for the same cause between the same parties or their respective privies. Floyd vs. Brown, 1 Rawle, 121. Marsh vs. Pier, 4 Rawle, 273. Merrick’s Estate, 5 W. & S. 17. Morrell vs. Johnson, 1 Hen. & Munf. 499. Rogers vs. Moon, 1 Rice, 60. Carlisle vs. Burley, 3 Greenl. 250. That satisfaction is necessary, on the other hand, is supported by Curtis vs. Groat, 6 Johns. 168. Osterhout vs. Roberts, 8 Cowen, 43. Sanderson vs. Caldwell, 2 Aiken, 203. Jones vs. McNeil, 2 Bailey, S. C. 466.—Sharswood.
[(a) ] 2 Lev. 141. Stra. 1169. Combe vs. Pitt, B. R. Tr. 3 Geo. III.
[(b) ] Stat. 4 Hen. VII. c. 20.
[(c) ] Cro. Eliz. 138. 11 Rep. 65.