Title to Personal Property by Act of Law

Goods and chattels may change owners by act of law, in the cases of forfeiture, succession, marriage, judgment, insolvency, and intestacy. Those of succession and marriage have already been considered, and I shall now confine myself to the other means of acquiring title to chattels by act of law.

I. By Forfeiture.

The title of government to goods by forfeiture, as a punishment for crimes, is confined in this state to the case of treason. The right, so far as it exists in this country, depends, probably, upon local statute law; and the tendency of public opinion has been to condemn forfeiture of property, at least in cases of felony, as being an unnecessary and hard punishment of the felon’s posterity. Every person convicted of any manner of treason, under the laws of this state, forfeits his goods and chattels, as well as his lands and tenements; but the rights of all third persons, existing at the time of the commission of the treason, are saved.¹ Forfeiture of property for crimes in any other case, is expressly abolished;² and even the attainder of treason does not extend to corrupt the blood of the offender, or to forfeit the dower of his wife.³ The forfeiture in treason as to real estate, related, at common law, back to the time of the treason committed, and, therefore, all alienations and encumbrances by the traitor, between the time of the offense and the conviction, were avoided; but the forfeiture of his goods and chattels related only to the time of the, conviction, and all sales made in good faith, and without fraud, before conviction, were good.⁴

Forfeiture of estate, and corruption of blood, under the laws of the United States, and including cases of treason, are abolished.⁵ Forfeiture of property, in cases of treason and felony, was a part of the common law, and must exist at this day in the jurisprudence of those states where it has not been abolished by their constitutions, or by statute. Several of the state constitutions have provided, that no attainder of treason or felony shall work corrupt ion of blood or forfeiture of estate, except, during the life of the offender;⁶ and some of them have taken away the power of forfeiture absolutely, without any such exception.⁷ There are other state constitutions which impliedly admit the existence or propriety of the power of forfeiture, by taking away the right of forfeiture expressly in cases of suicide, and in the case of deadened, and preserving silence as to other cases; and, in one instance,⁸ forfeiture of property is limited to the cases of treason and murder.

The English law has felt the beneficial influence of the progress of public opinion on this subject. The statute of 7 Anne, c. 22. abolished, after the death of the pretender, forfeiture for treason beyond the life of the offender; and though the statute of 17 Geo. II. c. 29 postponed the operation of that provision, it was only until the death of the pretender, and his sons. And by a bill introduced into Parliament by Sir Samuel Romilly, in 1814, and afterwards, under modifications, passed into a law, corruption of blood, in cases of felony, except murder, was abolished. The ingenious and spirited defense of the law of forfeiture, which was made by Sir Charles Yorke in the middle of the last century,⁹ and in which he insisted, that it stood on “just, social, and comprehensive principles, and was a necessary safeguard to the state, whether built on maxims of monarchy or freedom,” has failed to convince the judgement, or satisfy the humanity of the present age. Government succeeds, as of course, to the personal and real estate of the intestate, when he has no heirs, or next of kin, to appear and claim it; but this is for the sake of order and good policy, and the succession by escheat, in such cases, is usually regulated by statute.¹⁰

II. By Judgment.

On a recovery by law in an action of trespass or trover, of the value of a specific chattel, of which the possession has been acquired by tort, the title of the goods is altered by the recovery, and is transferred to the defendant, and the damages recovered are the price of the chattel so transferred by operation of law solutio pretii emptionis loco habetur. The books either do not agree, or do not speak with precision on the point, whether the transfer takes place, in contemplation of law, upon the final judgment merely, or whether the amount of the judgment must first be actually paid or recovered by execution. In Brown v. Wotton,¹¹ Fenner, J. said, that in case of trespass, after the judgment given, the property of the goods is changed, so as that the former proprietor may not seize them again; and in Adams v. Broughton,¹² the K. B. declared, that the property in the goods was entirely altered by the judgment obtained in trover, and the damages recovered were the price thereof. On the other hand, the rule is stated in Jenkins¹³ to be, that if one person recovers damages in trespass against another for taking his chattel, “by the recovery and execution done thereon,” the property of the chattel is vested in the trespasser; and in the Touchstone¹⁴ it is said, that if one recovers damages of a trespasser for taking his goods, the law gives him the property of the goods, “because he has paid for them.” The rule in the civil law was, that when the wrongful possessor of moveable property, who was not in a condition to restore it, had been condemned in damages, and had paid the same to the original proprietor, he became possessed of the title. The. Roman and the French law speak of the change of rights as depending upon the payment of the estimated valued.¹⁵ So, also, in the modern case of Drake v. Mitchell,¹⁶ Lord Ellenborough observed, that he always understood the principle of transit in rem judicatam to relate only to the particular cause of action in which the judgment was recovered, operating as a change of remedy, from its being of a higher nature than before; and that a judgment recovered in any form of action, was still but a security for the original cause of action, until it was made productive in satisfaction to the party; and until then, it would not operate to change any other collateral concurrent remedy which the party might have. This is the more reasonable, if not the more authoritative conclusion on the question.

III. By insolvency.

It has been found necessary in governments which authorize personal arrest and imprisonment for debt, to interpose and provide relief to the debtor in cases of inevitable misfortune; and this has been particularly the case in respect to insolvent merchants, who are obliged by the habits, the pursuits, and the enterprising nature of trade, to give and receive credit, and encounter extraordinary hazards. Bankrupt and insolvent laws are intended to secure the application of the effects of the debtor to the payment of his debts, and then to relieve him from the weight of them.

The constitution of the United States gave to Congress the power to establish uniform laws on the subject of bankruptcies throughout the United States. Bankruptcy in the English law has, by long and settled usage, received an appropriate meaning, and has been considered to be applicable only to fortunate traders, who do certain acts which afford evidence of an intention to avoid payment of their debts.¹⁷ But the line of partition between bankrupt and insolvent laws, is not so distinctly marked, as to enable any person to say with positive precision, what belongs exclusively to the one and not to the other class of laws. It is difficult to discriminate with accuracy between bankrupt and insolvent laws; and therefore a bankrupt law may contain those regulations which are generally found in insolvent laws, and an insolvent law may contain those which are common to a bankrupt law. The legislature of the Union possesses the power of enacting bankrupt laws,¹⁸ and those of the states, the power of enacting insolvent laws; and a state has likewise authority to pass a bankrupt law; but no state bankrupt or insolvent law can be permitted to impair the obligation of contracts, and there must likewise be no act of Congress in existence on the subject, conflicting with such law.¹⁹ There is this further limitation also on the power of the separate states to pass bankrupt or insolvent laws, that they cannot in the exercise of that power, act upon the rights of the citizens of other states.²⁰ At present there is nut any bankrupt system in existence under the government of the United states, and the several states are left free to institute their Own bankrupt systems, subject. to the. limitations which have been mentioned. The objection to a national bankrupt system consists in thee difficulty of defining, to the satisfaction of every part of the country, the precise class of debtors who can consistently with the constitutional jurisdiction of Congress over the subject, be made the subjects of it; and in the great expense, delay and litigation, which have been found to attend proceedings in bankruptcy; and in the still more grievous abuses and fraud which the system leads to, notwithstanding the vigilance and integrity of those to whom the administration of the law may be committed. To show the subtlety of the English distinctions on this subject, it may be here observed, that a farmer, grazier, or drover, cannot, from their occupations, be bankrupts; and yet if a farmer buys and sells apples, or potatoes, or other produce of a farm for gain, or manufactures bricks for sale, and becomes a dealer in such articles, he becomes, like any other trader, subject to the English bankrupt laws.²¹ So, a farmer who becomes a dealer in horses, for the sake of gain; or an innkeeper, who sells liquor out of his house to all customers who apply for it, will become an object of the bankrupt laws. The question turns upon the person’s common or ordinary mode of dealing in the case.²² If a man exercises a manufacture from the produce of his own land, as a necessary or usual mode of enjoying that produce, he is not a trader; but if the produce of his farm be merely the raw material of a manufacture, and that manufacture not the necessary mode of enjoying his land, he is a trader.²³ And with respect to the infirmities of the English bankrupt system, which have been the growth of upwards of two centuries, and been constantly under the review of parliament, and matured by the talents and experience of a succession of distinguished men in chancery, we may refer to the observation of Lord Eldon, when he succeeded to the great seal in 1801, and who took the earliest opportunity to express his strong indignation at the frauds committed under cover of that system. He remarked,²⁴ that “the abuse of the bankrupt law was a disgrace to the country, and that it would be better at once to repeal all the statutes, than to suffer them to be applied to such purposes. There was no mercy to the estate. Nothing was less thought of than the object of the commission. As they were frequently conducted in the country, they were little more than stock in trade for the commissioners, the assignee, and the solicitor.”

The respective states, as we have already seen, may pass bankrupt and insolvent laws. The power given to the United States to pass bankrupt laws, is not exclusive; and the exercise of the power residing in the states to pass bankrupt and insolvent laws, does not impair, in the sense of the constitution, the obligation of contracts made posterior to the law; but the discharge under the state law is no bar to a suit on a contract existing when the law was passed, nor to an action by a citizen of another state, in the courts of the United States, or of any other state than that where [ob]tained. The discharge under a state law, will not discharge a debt due to a citizen of another state. It will only operate upon contracts made within the state between its own citizens, or suitors subject to state power. The Supreme Court of the United States, in Ogden v. Saunders, disclaimed the doctrine of the English jurisprudence, that the discharge of a bankrupt was effectual against contracts of the state in which the discharge was procured, wheresoever may be the allegiance or country of the creditor. The doctrine in that case is, that a discharge under the bankrupt law of one country, does not affect contracts made or to be executed in another. The municipal law of the state is the law of the contract made and to be executed within the state, and travels with it wherever the parties to it may be found, unless it refers to the law of some other country, or be immoral, or contrary to the policy of the country where it is sought to be enforced. This was deemed to be a principle of universal law, and therefore the discharge of the contract, or of the party, by the bankrupt law of the country where the contract was made, is a discharge everywhere.²⁵ We have no bankrupt law, technically so called, existing in this state; but we have a permanent insolvent law, enabling every debtor to be discharged from all his debts, upon the terms and in the mode prescribed. The first general insolvent law of this state was passed in the year 1784, and alterations and amendments have from time to time been made, until the system has attained all the consistency, provision and improvement, that the nature of the subject easily admits.²⁶

Our insolvent laws enable the debtor, with the assent of two thirds in value of his creditors, to be discharged from all his debts contracted within this state, and subsequent to the passing of the insolvent act, and due at the time of the assignment of his property, or contracted for before that time, though payable afterwards.²⁷ It would be tedious, and quite unnecessary, to enter into a particular detail of the proceedings under our insolvent acts. They can be easily learned, when the application of the law becomes necessary, by a careful inspection of the several steps precisely pointed out in the statutes, and made requisite on the part of the debtor to the validity of his discharge. Nor can I undertake to examine the various and special provisions of the insolvent laws of the different states, some of which are in continual fluctuation. What t have to say in the discharge of my present undertaking, relative to insolvent and attachment laws, must necessarily be essentially confined to the local law of my own state.²⁸ There are other provisions belonging to the insolvent system, which are exclusively applicable to imprisoned debtors, who may, in all cases free from fraud, he discharged from prison, and exempted from future arrest, without the hazard of any constitutional objection. Imprisonment is no part of the contract, and simply to release the prisoner does not impair it obligation.²⁹ Persons who are not freeholders, and charged with small debts, can be relieved froth prison after thirty or sixty days, and every person charged in execution for debt under 500 dollars, may immediately thereafter, and if for any sum above 500 dollars, may, after the expiration of three calendar months, apply, and be discharged from imprisonment, on the surrender of his property for the payment of his debts.³⁰ If imprisonment for debt is to be in any degree retained, these provisions would seem to render it as mild and limited as is consistent with its objects and policy, which is simply to coerce the debtor to pay with concealed property which the creditor cannot reach, and to check the disposition to run in debt heedlessly and fraudulently. Imprisonment for debt is not usual unless the debt was contracted, in the first instance, under deceitful assurances, or unless the debtor has applied his property unfairly, or refused to give to his creditor any reasonable and satisfactory explanation. And in all those cases he deserves imprisonment. Severity towards fair, but unfortunate debtors, is no part of the character or disposition of our countryman. Every such disposition is sufficiently checked by the all powerful efficacy of public opinion, and the control of a jealous, free, and vigilant public press. It is more often the debtor, than the creditor, who uses menacing language, and dictates terms of settlement. It is the debtor, and not the creditor, who usually has at his command the hopes and fears, the comfort or distress of the adverse party and of his family, and he generally sways that influence in a way to effect a very beneficial compromise for himself.

The case of absconding and absent debtors may be referred to this head of insolvency, our attachment law being, (like our insolvent acts, and the acts for the relief of debtors from imprisonment,) a legal mode by which a title to property may be acquired by operation of law.³¹ When the debtor who is indebted within this state, absconds, or is concealed, a creditor to whom he owes 100 dollars, or any two to whom he owes 150 dollars, or any three to whom he owes 200 dollars, may, on application to a judge or commissioner, and on due proof of the departure or concealment, procure his real and personal estate to be attached; and, on due public notice of the proceedings, if the debtor does not, within three months, return, and satisfy the creditor, or appear and offer to contest the fact of having absconded, or offer to appear and contest the validity of the demand, and give the requisite security, then trustees are to be appointed, who become vested with the debtor’s estate, and they are to collect and sell it, and settle controversies, and make dividends among all his creditors in the mode prescribed. From the time of the notice, all sales and assignments by the debtor are declared to be void. If the debtor resides out of the state, his property is liable to be attached and sold in like manner, but the trustees are not to be appointed until one year after public notice of the proceeding. Persons imprisoned in the state prison for a less period than life, are liable to be proceeded against as absconding debtors. Perishable goods, when attached under the absconding debtor acts, may be immediately sold and converted into money; and if the sheriff, under the attachment, seizes property claimed by third persons, he is to summon a jury, and to take their inquisition as to the title to the properly claimed. If any vessel belonging to the debtor be attached under these proceedings, it may be released on giving security to pay the amount of the valuation of the vessel to the trustees; and if it be a foreign vessel, claimed by a third person, the attaching creditor must give security to prosecute the attachment, and pay the damages, if it should appear that the vessel belonged to the claimant.

It has been decided, that a creditor, having an unliquidated demand resting in contract, is a creditor within the absconding debtor act, and con pet eat to apply for the attachment.³² It was formerly held, that the creditor who instituted proceedings against an absconding debtor, must be a resident within the state;³³ but the statute declares, that any creditor residing out of the state shall be deemed a creditor within the act, and he may proceed by attorney. The act says, that a debtor who resides out of the state is to be proceeded against us an absent debtor; and if a debtor who resides abroad, was to come transiently into the state, without the animus manendi, and, while here, should conceal himself to avoid arrest, he is to be deemed an absent debtor; and the charge of an absconding, or concealed debtor, will not lie against. any person whose domicile is not established here.³⁴ The debt must have been contracted within this state, to bring the case within the act; and its provisions do not apply to a foreign creditor, against a foreign debtor not domiciled here, and whose debt was not contracted within the state.³⁵

The court in which proceedings under the absconding debtor act are pending, has an equitable jurisdiction over all claims between the trustees and the creditors. They are liable to be called to account at the instance of either the debtor or creditor. Trustees, in this case, resemble commissioners under the English bankrupt laws, as they are to liquidate all demands, and declare and pay dividends; and the proper remedy against the trustees is, either by a bill in chancery, or an application to the equitable powers of the court in which the proceedings are pending, to compel an account, and an adjustment. It was accordingly held, in Peck v. Randall,³⁶ that the creditor could not maintain a suit at law against the trustees before the demand had been adjusted, and a dividend declared. In England, it is well settled, in the analogous case of a claim for dividends on a bankrupt’s estate, that a suit at law cannot be sustained for a dividend, and that the creditor applies to the Court of Chancery for assistance to obtain it.³⁷

A grave and difficult question has been frequently discussed in our American courts. respecting the conflicting claims arising under our attachment laws, and under a foreign bankrupt assignment. If a debtor in England, owing a house in this state, as well as creditors in England, be regularly declared a bankrupt in England, and his estate duly assigned, and if the house in this state afterwards sues out process of attachment against the estate of the same debtor, and trustees are appointed accordingly. the question is, which class of trustees is entitled to distribute the fund, and to whom can the debtors of the absent or bankrupt debtor safely pay. In such a case there are assignees in England claiming a right to all the estate and debts of the bankrupt, and there are trustees in New York claiming the same right. This question was considered in Holmes v. Remsen,³⁸ and the English, and Scotch, and other foreign authorities examined, and the conclusion was, that by the English law, and by the general international law of Europe, the proceeding which is prior in point of time, is prior in point of right, and attaches to itself the right to take and distribute the estate. It was considered, that as the English assignees in that case were first appointed, and the assignment of the bankrupt’s estate first made to them, that assignment carried the bankrupt’s property wherever situated, and it consequently passed the debt due by a citizen of this state to the English bankrupt, so that a payment of such a debt to the English assignees was a good payment in bar of a claim for that same debt, by the trustees, under our absconding act. This rule appeared to be well settled, and to be founded in justice and policy, and the comity of nations; and no doubt was entertained, that if the appointment of trustees, under our act, had been the first in point of time, the title of the trustees would have been recognized in the English courts as controlling trolling the personal property in England. By the same rule, the English assignees being first in time, were held entitled to control the personal property of the debtor existing in this state.

But whatever consideration might otherwise have been due to the opinion in that case, and to the reasons and decisions on which it rested, the weight of American authority is decidedly the other way; and it may now be considered as part of the settled jurisprudence of this country, that a prior assignment in bankruptcy, under a foreign law, will not be permitted to prevail against a subsequent attachment by an American creditor of the bankrupt’s effects found here; and our courts will not subject our citizens to the inconvenience of seeking their dividends abroad, when they have the means to satisfy them under their own control. This was the rule in Maryland prior to our revolution, according to the opinion of Mr. Dulany, reported in Burk v. McLean;³⁹ and afterwards, in 1790, it was decided in Wallace v. Patterson,⁴⁰ that property of the bankrupt could be attached here, notwithstanding a prior assignment in bankruptcy in England. The same doctrine was declared in Pennsylvania,⁴¹ after an elaborate discussion of the question. The court in that state considered that an assignment abroad, by act of law, had no legal operation extra territorium, and that they were bound to look to their own law. The same doctrine was declared in North Carolina, as early as 1797.⁴² In South Carolina, the same question arose in the case of the Assignees of Topham v. Chapman, in 1817;⁴³ and the court in that case followed some prior decisions of their own, and the case of Taylor v. Geary, decided in Connecticut as early as 1787,⁴⁴ and they held that law, justice, and public policy, all combined to give a preference to their own attaching creditors. The point arose in the Supreme Court in Massachusetts, in Ingraham v. Geyer, in 1816,⁴⁵ and they would not allow even a voluntary assignment by an insolvent debtor in another state, to control an attachment in that state, of the property of the insolvent, made subsequent to the assignment, and before payment to the assignees; and the court denied that any such indulgence was required by the practice or comity of nations. The opinion in the case of Holmes v. Remsen was also ably questioned by one of the Judges of the Supreme Court of this state, in a suit at law between the same parties.⁴⁶ And still more recently, in the Supreme Court of the United States,⁴⁷ the English doctrine (for it is there admitted to be the established English doctrine,) was peremptorily disclaimed in the opinion delivered on behalf of the majority of the court.

IV. By intestacy.

The last instance which was mentioned of acquiring title to goods and chattels by act of law, was the case of intestacy. This is when a person dies, leaving personal property undisposed of by will; and in that case, the personal estate, after the debts are paid, is distributed to the widow, and among the next of kin. To avoid repetition and prolixity, or inextricable confusion, I shall be obliged to confine myself to the discussion of the leading principles of the English law and the law of New York, on this head; and I shall assume them to be the law of the several states, in all those cases in which some material departure from them in essential points cannot be clearly ascertained.

This title will be best explained by examining, 1. To whom the administration of such property belongs, and to whom granted; 2. The power and duty of the administrators; and, 3. The persons who succeed to the personal estate by right of succession.

1. When a person died intestate, in the early periods of the English history, his goods went to the king as the general trustee or guardian of the state. This right was afterwards transferred by the crown to the popish clergy; and, we are told, it was so flagrantly abused, that Parliament was obliged to interfere, and take the power of administration entirely from the church, and confer it upon those who were more disposed to a faithful execution of the trust. This produced the statutes of 31 Edw. III. c. 11. and 21 Hen. VIII. c. 5, from which we have copied the law of granting administration in this state.⁴⁸ The power of granting administration, and of superintending the conduct of the administration, was still left in the hands of the bishop, or ordinary, in each diocese. In this country, we have assigned this, as well as other secular matters, to the courts and magistrates of civil jurisdiction. Before the revolution, the power of granting letters testamentary, and letters of administration, with us in this state, resided in the colonial governor, as judge of the Prerogative Court, or Court of Probates of the colony. It was after wards vested in the Court of Probates, consisting of a single judge, and so continued until 1787, when surrogates were authorized to grant letters testamentary, and letters of administration, of the estates of persons dying within their respective counties. If the person died out of the state, or within this state, not being an inhabitant thereof, the granting of administration was still reserved to the Court of Probates.⁴⁹ This practice continued until the act of 21st of March. 1823,⁵⁰ when the Court of Probates was abolished, and all the original powers of that court transferred to the surrogates; and any surrogate has jurisdiction of the cases before referred to the Court of Probates, provided there be in his county personal property of the deceased.

Administration is directed to be granted to the widow, or next of kin, or to some one of them, if they, or any of them, will accept.⁵¹ Among the next of kin, the surrogate has a discretion to elect any one in equal degree in exclusion of the rest, and to grant to such person sole administration. So, he may grant administration⁵² to the widow or next of kin, or to both jointly, at his discretion.⁵³ To guard against imposition or mistake in issuing letters of administration prematurely, the surrogate is required to have satisfactory proof, that the person of whose estate administration is claimed, is dead, and died intestate; and when application is made to administer, by any person not entitled as next of kin, citation to show cause is to be first issued to the next of kin, and duly served, or otherwise published.⁵⁴

If letters of administration should happen to have been unduly granted, they may be revoked; and administration may he granted upon condition, or for a limited time, or for a special purpose.⁵⁵ Feme coverts dying intestate are excepted out of the statute, and their husbands are entitled to demand and have administration of their estates, and recover and enjoy the same as fully as before the act.⁵⁶

The nearness of kin, under our law, is computed according to the civil law, which snakes the intestate himself the terminus a quo, or point from whence the degrees are numbered; and, therefore, the children and parents of the intestate are equally near, being all related to him in the first degree; but in this instance the surrogate has not his option between them, but must prefer the children.⁵⁷ And from the children and parents the next degree embraces the brothers and grand parents, and so on in the same order. The law and course is to grant administration, 1. To the husband or wife; 2. To the children, sons or daughters; 3. To the parents, father or mother; 4. To the brothers or sisters of the whole blood; 5. To the brothers or sisters of the half blood; 6. To the grand parents; 7. To uncles, and aunts, and nephews, and nieces, who stand in equal degree; 8. To cousins.⁵⁸

Grandmothers are preferred to aunts, as nearer of kin; for the grandmother stands in the second degree to the intestate, and the aunt in the third.⁵⁹ If none of the next of kin will accept, the surrogate may exercise his discretion whom to appoint, and he usually decrees it to the claimant who has the greater interest in the effects of the intestate. If no one offers, he must then appoint a mere trustee ad colligendum, to collect and keep safe the effects of the intestate;⁶⁰ and this last special appointment gives no power to sell any part of the goods, not even perishable articles, nor can the surrogate confer upon him that power.⁶¹

The administrator (except it be the husband administering on his wife’s estate, or the public administrator in the city of New York) must enter into a bond before the surrogate, with two sureties, for the faithful execution of his trust.⁶²

The administrator being thus duly appointed, it is his duty to proceed forthwith to the execution of his trust. His powers and duties may be summarily comprehended in the following particulars.⁶³ He is to make an inventory of the goods and chattels of the intestate, in the presence, and with the discretion of two persons who are creditors, or next of kin, or discreet neighbors. Two copies of this inventory are to be made and indented, and one copy is to be lodged with the surrogate under the attestation of the administrator’s oath, and the other is to be retained. This inventory is intended for the benefit of the creditors, and next of kin, and the administrator will be obliged to ac. count for the property mentioned in it, and he will also be obliged to show good cause for not collecting the debts that are mentioned to be due, unless he had the precaution to note them in the inventory as desperate.

After completing the inventory, his duty is to collect the outstanding debts, and convert the property into money; and pay the debts due from the intestate. In paying the debts, he must preserve the order prescribed by the rules of the common law, and pay first funeral charges and the expense at the probate office; next, debts due to the state, then, debts of record, as judgments, recognizance, and final decrees; next, debts due for rent, and debts by specialty, as bonds and sealed notes; and lastly, debts by simple contract. The civil law gave no such preference to creditors, except as to debts incurred for funeral expenses, and the expenses of the administration, and debts by mortgage. The heir paid himself first, and he might pay the first creditor who came. All the assets were considered as equitable.⁶⁴ When debts are in equal degree, the administrator may pay which he pleases first, and he may always prefer himself to other creditors in equal degree. If a creditor commences a suit at law, or in equity, he obtains priority over other creditors in equal degree; but an administrator may go and confess judgment to another creditor in equal degree, and thereby defeat the creditor who first sued, by pleading the judgment and nil ultra, etc.⁶⁵ The rules of law as to the inventory, the collection of the property, and the payment of debts, apply equally to executors; but I do not purpose to dwell more at large on this subject. My principal object in this part of the present lecture, is rather to notice the descent and distribution of personal property, than to discuss the general powers and duties of executors and administrators. In Chancery, the distribution of what is there termed equitable assets, is Inure liberal stud equal. There is no distinction as to the quality of the debts, except they be debts which have acquired a priority by a legal lieu; and tsar creditors are paid rateably, if the assets be not sufficient to pay all of them.

In the jurisprudence of the several states, thee right of administration belongs to the widow or next of kin, wider the same regulations, essentially, as in this state; but in the administration of the assets, the rule is different, and subject to various local modifications. III a few of the states, the English order of preference is preserved.⁶⁶ In most of the other states, that order is entirely disturbed, and a more just and equitable rule of distribution adopted. Expenses of the last sickness, and funeral and probate charges, have every where the preference, and generally debts due to the state are next preferred, and then all other debts are placed on an equality, and paid rateably in the case of a deficiency of assets.⁶⁷ In Louisiana, there is a particular detail of the order of priority, which is special and peculiar, and minute even beyond the rule of the common law In Maryland, judgments and decrees have preference, and all ocher debts are equal; and in Missouri, expenses of the last sickness, debts due to the state, and judgments, have preference, and all other debts are placed on an equality.⁶⁸ In Pennsylvania, the order of administration is to pay, 1. Physic, funeral expenses, and servant’s wages; 2. Rents, not exceeding one year; 3. Judgments; 4. recognizances; 5. Bonds and specialties; 6. All of her debts equally, except debts due to the state, which are to be last paid.⁶⁹

When the debts are paid, the administrator is bound, after the expiration of a year from the granting of administration, to distribute the surplus property among the next of kin. The statutes⁷⁰ declares, that after the debts, funeral charges and just expenses are deducted, a just and equal distribution of what remains clear of the goods and personal estate of the intestate, shall be made amongst the wife and children, or children’s children, if any such there be, or otherwise to the next of kin to the intestate, in equal degree, or legally representing their stocks, that is to say, one third part of the surplusage to the wife of the intestate, and all of the residue by equal portions to and amongst the children of the intestate, and their representatives, if any of the children be dead, other than such child or children who shall have any estate by settlement, or shall be advanced by the intestate in his lifetime, by portion equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made. And if the portion of any child who bath had such settlement or portion, be not equal to the share due to the other children by the distribution, the child so advanced is to be made equal with the rest. If there be no children, or their representatives, one moiety of the personal estate of the intestate goes to the widow, and the residue is to be distributed equally among the next of kin, who are in equal degree, and those who represent them; but no representation is admitted among collateral after brothers’ and sisters’ children; and in case there be no wife, then the estate is to be distributed equally amongst the children; and if no child, then to the next of kin in equal degree, and their lawful representatives, in the manner already mentioned. It is further provided, that. if any child shall die intestate after the death of the father, and without wife or children, and in the lifetime of the mother, every brother and sister, and their representatives, shall have an equal share with her.

This is the substance of our act of distributions, which may assert a parentage of very distant antiquity, for it is copied literally from the English statute of 22d and 23d Charles II. ch. 10, and that statute was borrowed from the 118th novel of Justinian, and, except in some few instances mentioned in the statute, it is governed and construed by the rules of the civil law.⁷¹

The next of kin, within the meaning of the statute, are those who are so determined by the civil law, by which the intestate himself is the terminus a quo the several degrees are numbered. Under that rule, the father stands in the first degree, the grandfather and the grandson in the second, and in the collateral line, the computation is from thy: intestate up to the common ancestor of the intestate, and the person whose relationship is sought after, and then down to that person. According to that rule, the intestate and his brother are related in the second degree, the intestate and his uncle in the third degree.⁷² The half blood are admitted equally with the whole blood, for they are equally as near of kin; and the father succeeds to the whole personal estate of a child who dies intestate, and without wife or issue, in exclusion of the brothers and sisters; and the mother would have equally so succeeded as against the collaterals, had it not been for a saving clause in the act, which excludes her from all but a rateable share. She is excluded, lest, by remarrying, she would carry all the personal estate to another husband, in entire exclusion, for ever, of the brothers and sisters. The K. B. declared, in Blackborough v. Davis,⁷³ that the father and mother had always the preference before the brothers and sisters, in the inheritance of the personal estate, as being esteemed nearer of kin; and for the same reason, the grandmother is preferred to the aunt. The grandmother is preferred, not because she is simply in the ascending line, for, under the statute of distributions, a nearer collateral will be preferred to a more remote lineal, but because she is nearer of kin, according to the computation of the civilians, by one degree. And in Moor v. Barham, decided by Sir Joseph Jekyll,⁷⁴ the grandfather on the father’s side, and the grandmother on the mother’s side, take in equal moieties by the statute of distribution, as being the next of kin in equal degree, and the half blood take equally with the whole blood. A brother and a grandfather of the intestate are equally near of kin, and each related in the second degree, and, therefore, it would seem, from the directions in our act, that they would take equally; but it has been decided in England, and it is also the better construction of the novel of Justinian, that the brother of the intestate will exclude the grandfather of the intestate. This was so decided in Pool v. Wilshaw, in 1708; and Lord Hardwicke, in Evelyn v. Evelyn,⁷⁵ followed that determination as being correct, though it may he considered an exception to the general rule. He said it would be a very great public inconvenience, to carry the, portions of children to a grandfather, and contrary to the very nature of provisions among children, as every child may properly be said to have a spes accrescendi. This question was very much debated among the civilians in their construction of the 118th novel of Justinian, and the generality of them, of whom Ferriere and Domat are of the number, were of opinion, that the grandfather and, the brother took equally; but Voet was of a different opinion, and his opinion, though without any strong foundation in reason, is the one prevailing in the English courts.⁷⁶

The question whether the half blood took equally with the whole blood, under the statute of distributions, “as debated in the case of Watts v. Crooks,⁷⁷ and it was determined in chancery, that they were of equal kin, and took equally with the whole blood, and the decree was affirmed upon appeal to the house of Lords. So, posthumous children, whether of the whole or half blood, take equally as other children under the statute.⁷⁸

A:; the statute of distribution says, that no representation shall be admitted among collaterals after brother’s and sister’s children, it has been held, in Pett v. Pett,⁷⁹ that. a brother’s grandchildren cannot share with another brother’s children. And, therefore, if the intestate’s brother A. be load, leaving only grandchildren, and his brother B. he dead, leaving children, and his brother C. be living, the grandchildren of A. will have no share, and cannot take. One half of the personal estate will go to the children of B., and the other half to C.⁸⁰ But if all the brothers and sisters and their children be dead, leaving children, those children cannot take by representation, for it does not extend so far, but they are all next of kin, and in that character they would take per capita. Representation in the descending lineal line proceeds on ad infinitum, restrained by no limits. It has also been decided, that if the intestate leaves no wife or child, brother or sister, but his next of kin are an uncle by his mother’s side, and a son of a deceased aunt, the uncle takes the whole, and the representation is not carried down to the representatives of the aunt.⁸¹

It is the doctrine under the statute of distributions, that the claimants take per stripes only when they stand in unequal degrees, or claim by representation, and then the doctrine of representation is necessary. But when they all stand in equal degree, as three brothers, three grandchildren, three nephews, etc. they take per capita, or each an equal share, because, in this case, representation, or taking per stirpes, is not necessary to prevent the exclusion of those in a remoter degree, and it would be contrary to the spirit and policy of the statute, which aimed at a just and equal distribution.⁸² Aunts and nephews stand in the same third degree, and take equally per capita.⁸³ If a person dies without children, leaving a widow, and mother, brother and sister, and two nieces by a deceased brother, then, according to the established doctrine, the widow would take a moiety, and the mother, brother, and sister, would each take one fourth, and the two nieces the other one fourth of the remaining moiety. This point was ruled in Keylway v. Keylway,⁸⁴ and the doctrine was declared to be correct by Lord Hardwicke, in Stanley v. Stanley.⁸⁵

The distribution of personal property of intestates, in the several states, hits undergone considerable modification. In many of them, the English statute of distributions as to personal property, is pretty closely followed, as it is in this state.⁸⁶ In a majority of the states, the descent of real and personal property is to the same persons, and in the same proportions; but then the regulation is, as I apprehend, the same in substance as the English statute of distributions.⁸⁷ Such a uniform rule in the descent of real and personal property, gives simplicity and symmetry to the whole doctrine of descent. The English statute of distributions being founded in justice, and on the wisdom of and fully and profoundly illustrated by a series of judicial decisions, was well selected as the most suitable and judicious basis on which to establish our American law of descent and distribution.

There bas been much discussion as to the rule of distribution of personal property, when the place of the domicile of the intestate, and the place of the situation of the property, were not the same. But it has become a settled principle of international jurisprudence, and one founded on a comprehensive and enlightened sense of public policy and convenience, that the distribution of personal property, wherever situated, is governed by the law of the country of the intestate’s domicile, at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated. On the other hand, it is equally settled in the law of all civilized countries, that real property, as to its tenure, mode of enjoyment transfer and descent, is to be regulated by the lex loci rei sitae. Personal property is subject to that law which governs the person of the owner. Huberus lays down this to be the common and correct opinion, though the question had been frequently agitated in the courts in his day;⁸⁸ and Bynkershoek says, the principle had become so well established, that no one dared to question it; adeo recepta hodie sententia est, ut nemo ausit contra hiscere.⁸⁹ The same principle would seem to be the acknowledged law in Germany and France;⁹⁰ and Vattel⁹¹ considers the rule to be one that is dictated by the law of nations.

This principle was understood to be settled in England in the time of Lord Hardwicke, in the case of Thorne v. Watkins; and Lord Thurlow observed in the House of Lords,⁹² in the case of Bruce v. Bruce,⁹³ that to hold that the lex loci rei sitae was to govern as to personal property, when the domicilium of the intestate was in a different country, would be a gross misapplication of the jus gentium. And yet, notwithstanding all this weight of authority in favor of the solidity and universality of the principle, the point was permitted to be very extensively and learnedly debated before Lord Loughborough, in the case of Bempde v. Johnstone;⁹⁴ and he said that the question had been decided and settled, and the law clearly fixed in England, by repeated decisions in the House of Lords; and that by those decisions, the law of the intestate’s domicile at the time of his death carried the distribution of his personal property, wherever it was situated. The law of Scotland was once different; but the Court of Session has now conformed to the English decisions: He admitted, however, that if the point had been quite new and open, it would be susceptible of a great deal of argument, whether, in the case of a person dying intestate, having property indifferent places, and subject to different laws, the law of each place should not obtain in the distribution of the property situated there; and many foreign lawyers, he said, had held that proposition. Afterwards, in Somerville v. Lord Somerville,⁹⁵ the same rule was declared by the Master of the Rolls, to apply to all cases where the fact of the domicile was not in dispute. But in the recent case of Curling v. Thornton,⁹⁶ Sir John Nicholls doubted whether a British natural born subject could shift his forum originis for a foreign domicile, in complete derogation of his rights under the British law; and he said, it must be at least complete and total, to make his property in England liable to distribution, according to the foreign law, and the party must have declared and carried his intention into full effect.⁹⁷

The rule as settled, in England, and by the general usage of nations, as to real and personal property, has repeatedly been declared to constitute a part of the municipal jurisprudence of this country.⁹⁸ The difficulty has been, not in the rule itself, but in the application and execution of it. In Topham v. Chapman, it was said, that though the distribution was to be according to the laws of the country of the domicile of the intestate, yet that his debts in a foreign country must be collected and paid, according to the law of that country. Administration must be granted where the .debts were, for an administrator has no power beyond the jurisdiction in which he received his letters of administration, and the home creditors must first be paid before the administrator could send the surplus fund to the country of the proper domicile of the intestate. Much discussion took place on this part of the subject, in Harvey v. Richards. It was held, upon a masterly consideration of the case, that whether a Court of Equity would proceed to decree an account and distribution, according to the lex loci rei sitae, or direct the assets to be distributed by the foreign tribunal of the domicile of the party, would depend upon circumstances. The sites rei, as well as the presence of the parties, conferred a competent jurisdiction to decree distribution, according to the rule of the lex domicilii, and such a jurisdiction was sustained by principles of public law, and was consistent with international policy. The court was not bound at all events to have the assets remitted to the foreign administrator, and to send the parties entitled to the estate abroad, at great expense and delay, to seek their rights in a foreign tribunal. Though the property was to be distributed according to the lex domicilii, national comity did not require that the distribution should be made abroad. Whether the court here ought to de: tree distribution, or remit the property abroad, was a matter of judicial discretion, and there was no universal or uniform rule on the subject.

The manner and extent of the execution of the rule was recently considered in the Supreme Court of Massachusetts.⁹⁹ A person was domiciled at Calcutta, and died there insolvent, and his will was proved, and acted upon there. Administration was taken out in Massachusetts on the probate of the will in the East Indies, and assets came to the hands of the administrator at Boston, sufficient to pay a claim due citizens of the United Sates, and a judgment debt due a British subject in England, but all the assets were wanted to be applied, in the course of administration, by the executor at Calcutta. It was held, that the administrator here was only ancillary to the executor in India, and the assets ought to be remitted, unless he was compelled by law to appropriate them here to pay debts. It was not decided whether he was compelled to pay here; but if it were the case, it would only be the American creditors, and the British creditor was not entitled to come here and disturb the legal course of settlement of the estate in his own country. If there were no legal claimants with us in the character of creditors, legatees, or next of kin, the administrator would be bound to remit the assets to the foreign executor, to be by him administered. according to the law of the testator’s domicile; and if any part of the assets were to be retained, it would form an exception to the general rule, growing big out of the duty of every government to protect its own citizens in the recovery of their debts. The intimation has been strong, that such an auxiliary administrator, in the, case of a solvent estate, was bound to apply the assets found here to pay debts due here, and that it would be a useless and unreasonable courtesy, to send the assets abroad, and the resident claimant after them. But if the estate was insolvent, the question became more difficult. The assets ought not to be sequestered for the exclusive benefit of our own citizens. In all civilized countries, foreigners, in such a case, are entitled to prove their debts, and share in the distribution. The court concluded, that the proper course in such a case would be, to retain the funds, cause them to be distributed pro rata, according to our own laws, among our own citizens, having regard to all the assets, and the whole aggregate amount of debt here and abroad, and then to remit the surplus abroad to the principal administrator. Such a course was admitted to be attended with delay and difficulty in the adjustment, but it was thought to be less objectionable, than either to send our citizens abroad upon a forlorn hope, to seek for fragments of an insolvent’s estate, or to pay them the whole of their debts without regard to the claims of foreign creditors.

A difficult question on the subject of the distribution of the property of intestates, arose in the K. B. in England in 1767, in the case of The King v. Hay.¹⁰⁰ A father and his only daughter perished at sea in the same vessel, and in one catastrophe, and a question suggested by the case was, who took under the statute of distributions. If the father died first, the personal estate would have vested in the daughters and, by her death, in her next of kin, who, on the part of the mother, was a different person from the next of kin on the part of the father. The right to succeed depended upon the fact which person died first, and that fact could not possibly he known, as the vessel perished at the same time. It was said to be the rule of the civil law to found its presumptions on the relative strength, arising from the difference of age and sex of two persons, but these presumptions were shifting and unstable. The court did not decide the question. The arguments on each side were equally ingenious and inconclusive. Lord Mansfield recommended a compromise, as he said there was no legal principle on which he could decide it. The same question arose again in the Prerogative Court in 1793, in Wright v. Sarmuda.¹⁰¹ The husband, wife, and children, all perished together in a vessel which foundered at sea; and Sir William Wynne, after a long and learned discussion, held it to be the most rational presumption, that all died together, and that none could transmit rights to another. So, again, in Taylor v. Diplock, in 1815,¹⁰² in a like case, Sir John Nicholl assumed, that the parties (who were husband and wife) perished at the same moment, and he could not decide on any survivorship in the case, and consequently granted administration to the representatives of the husband. The English law has hitherto waived the question, and, perhaps prudently, abandoned as delusive, all those ingenious and refined distinctions which have been raised on this vexed subject by the civilians. The latter draw their conclusions from a tremulous presumption, resting on the dubious point, which of the parties, at the time, under all the circumstances, of vigor and maturity of body, and quickness and presence of mind, was the most competent to baffle and retard the approaches of death.¹⁰³