« ForrigeFortsett »
bequest of a residue for life, with remainder over, the practice now is, to have the property sold and converted into money by the executor, and the proceeds safely invested, and the interest thereof paid to the legatee for life.a
Ch. Rep. 32. Smith v. Daniel, Ibid. 143. Merrit v. Johnson, 1 Yerger's Term. Rep. 71. 1 Hill's S. C. Ch. Rep. 44. 74. 137. 157. Henderson v. Vaulx, 10 Yerger, 30. Hudson v. Wadsworth, 8 Conn. Rep 348. Langworthy v. Cnadwick, 13 Ibid. 42. Homer v. Shelton, 2 Metcalf's Rep. 194. In Georgia, the person entitled in remainder or reversion of personal property may have a writ of ne exeat in such cases. Prince's Dig. 1837, p. 469.
• Howe v. Earl of Dartmouth, 7 Vesey, 137. But in the case of a bequest of specific chattels to A. for life, with remainder over, the legatee for life is entitled to the possession and enjoyment of the chattel, and not to have it sold by the executors, and the proceeds invested for his use, unless the will directs it. He is entitled to the increase and income of it from the testator's death. If, however, the property bequeathed would be of no use unless converted into cash, in that case a safe investment ought to be made by the executor for the benefit of the parties in interest respectively. Evans v. Eglehart, 6 Gill Sf Johnson, 171. De Peyster v. Clen. dining, 8 Paige's Rep. 295. But in the case of a female slave bequeathed to A. for life and then to B., her issue born during the life estate goes to the ultimate legatee. Covington v. M'Entire, 3 Iredell, 316. In Pennsylvania by act of 24th Feb., 1834, security is to be given in all cases, under the direction of the orphan's court, where personal property is bequeathed for life only.
OF TITLE TO PERSONAL PROPERTY, BY ORIGINAL
Title to personal property may accrue in three different ways:
I. By original acquisition.
The right of original acquisition may be comprehended under the heads of occupancy, accession, and intellectual labor.
1. Of original acquisition by occupancy.
The means of acquiring personal property, by occupancy, are very limited. Though priority of occcupancy was the foundation of the right of property, in the primitive ages, and though some of the ancient institutions contemplated the right of oocupancy as standing on broad ground,» *yet in the progress of society, *356 this original right was made to yield to the stronger
* Quod ante nullins est id naturali rati one occupanti conceditur. Inst. 3. 1. 12. Mr. Sheldon has shown, that among the ancient Hebrews fruits, fish, animals, and every thing found in desert or vacant places, belonged to the first occupant . De Jar. Mat. st Gent. jutta disciplinam Ebraorum, cited by Puff. b. 4. ch. 6. sec. 5.
claims of order and tranquillity. Title by occupancy is become almost extinct, under civilized governments, and it is permitted to exist only in those few special cases, in which it may be consistent with the public welfare.
(1.) Goods taken by capture in war, were, by the common law, adjudged to belong to the captor.* But now, by the acknowledged law of nations, and the admiralty jurisprudence of the United States, as has been already shown,b goods taken from enemies, in time of war, vest primarily in the sovereign; and they belong to the individual captors only to the extent, and under such regulations, as positive laws may prescribe.
(2.) Another instance of acquisition by occupancy, which still exists under certain limitations, is that of goods casually lost by the owner, and unreclaimed, or designedly abandoned by him; and in both these cases they belong to the fortunate finder.c But it is requisite that the former owner should have completely relinquished the chattel, before a perfect title will accrue to the finder; though he has, in the mean time, a special property sufficient to maintain trover against every person but the true owner.d He is not even entitled to a reward from the owner for finding a lost article, if none had been promised. He has no lien on the article found for his trouble and expense, and he is only entitled to indemnity
* Finek's Lavo, 28. 178. Bro. tit. Property, pi. 18. 38. Wright, J., in Morrough v. Coinyns, 1 Wilv. Rep. 211. b See vol. i. p. 100.
• 1 Black: Com. 296. 2 Ibid. 402. In Massachusetts, the finder of lost money or goods, must give notice as prescribed, and if no owner appears within one year, one half goes to the finder, and the other half to the town. Act, 1788, ch. 55. Revised Statutes, 1835. In Illinois, (Revised Laws of Illinois, 1833,) the finder of lost goods, money or choses in action, takes them if not above $15 in value, and no claimant within one year after due public notice. If above that value, they are to be sold in six months for public use.
< Armory v. Delamirie, Sir. Rep. 505. Brandon v. Huntsville Bank, 1 Stewart's Ala. Rep. 320.
against his necessary and reasonable expenses incurred on account of the chattel.11 The Roman law equally denied to the finder of lost property a reward for finding it; and according to the stern doctrine of Ulpian,b it was even considered *to be theft, to convert *357 to one's own use, animo lucrandi, property found, when the finder had no reason to believe it had been abandoned.0
• Armory v. Flynn, 10 Johns. Rep. 102. Binstead v. Buck, 2 Wm. Blackstone, 1117. Nicholson v. Chapman, 2 H. Blacks. 254. Etter v. Edwards, 4 Watts' Penn. Rep. 63. It is considered in the two last cases to be still an unsettled point, whether the finder of lost property can recover a compensation for the labour and expense voluntarily bestowed upon lost property found. In Reeder v. Anderson, 4 Dana's Ken. Rep. 193, it was held, that the finder was entitled, under an implied assumpsit, for his indemnity at least, against his expenditure of time or money in the successful recovery of lost property. Mr. Justice Story, (Bailment, p. 391, 2d edit.) gives a strong opinion in favour of compensation (or what he in admiralty law language terms salvage) to the " mere finders of lost property on land," beyond a full idemnity for their reasonable and necessary expenses. I beg leave to say, that it appears to me that such findings have no analogy in principle to the cases of hazardous and meritorious sea or coast salvage under the admiralty law, and that the rule of the common law, as illustrated by Ch. Justice Eyre, in Nicholson v. Chapman, as to these mere land findings, is the better policy.
b Dig. 47. 2. 44. sec. 4—10. The English law requires, that the animus furandi must have existed, when the property was first received or taken, to constitute larceny. Rex v. Mucklow, 1 Ryan <J- Moody, 160. Butler's case, 3 Inst. 107. Lord Coke, ibid. 2 East's P. C. 663. The People v' Anderson, 14 Johns. Rep. 294. It is not larceny, if theio be no evidence to show that the finder at the time knew who the owner was, though he afserwards fraudulently concealed the fact of finding the property. The People v. Cogdell, 1 Hill's N. Y. Rep. 94. But, on the other hand, the doctrine of Ulpian is not without approbation in some of the modern decisions, and it has been held, that if the person, who finds property lost, knows the owner, and notwithstanding conceals and converts the property to his own uso, it is larceny. The State v. Weston, 9 Conn. Rep. 527. Lawrence, J., and Gibbs, J., cited in 2 Russell on Crimes, 100. 103, and these cases are directly sanctioned in the case of People v. McGarren, 17 Wendell's Rep. 460.
* But the finder of a chose in action, as a check or lottery ticket, is not *ntitled to payment f1f the money due upon it, if the party paying has no
Vol. II. 34
This right of acquisition, by finding, is confined to goods found upon the surface of the earth; and it does not now extend to goods found derelict at sea, though abandoned without hope of recovery.* Nor does this right of acquisition extend to goods found hidden in the earth, and which go under the denomination of treasuretrove. Such goods, in England, belong to the king; and, in New-York, they formerly belonged to the public trea
tice that the holder came to the possession of it by finding. Payment under such circumstances, to the holder, would be no bar to an action by the owner. M'Laughlin v. Waite, 5 Wendell's Rep. 404. Picking up a purse of money in the highway and appropriating it is not larceny, if it had not any mark by which the owner might be known. Regina v. Mole, 1 Carr. 4/ Kirw. 417. But it seems from the modern cases that if a person find* lost property, knows the owner, or there are circumstances to ascertain the owner a convertion of it animo furandi is larceny. Merry v. Green, 7 Meeson W. 623. Regina v. Peters, 1 Carr. $ Kirwan, 245. If • chattel be dropped in a field or highway, or left in a stage coach, the owner does not lose the property, and if another finds it be is only justified in appropriating it to his own use, where the owner cannot be found, or where it may be fairly said he had abandoned it.
« The ancient rule, giving to the finder a moiety of the proceeds of goods found derelict at sea, (if any such rule ever existed,) has become obsolete; and derelicts are held to be perquisites, or droits of the admiralty, subject to be reclaimed by the owner, but without any other claim on the part of the finder, than to his reasonable salvage remuneration. This is now the general rule of civilized countries. The Aquilla, 1 Rob. A dm. Rep. 32. The King v. Property derelict, 1 Hagg. Adm. Rep. 383. Pcabody v. Proceeds of twenty-eight bags of Cotton, Amer. Jurist, No. 3. 119, decided in the district court of Massachusetts, 1829. A vessel at sea is not deemed derelict, unless she was absolutely abandoned as hopeless, and the animus revertendi did not exist. The Emulous, 1 Sumner, 207. Mesner and others v. Suffolk Bank, district court of U. S. Mass. November, 1838. In Wyman v. Hurlburt, 12 Ohio R. 81, a vessel was found by special verdict to have been abandoned by the owners and derelict at the bottom of the lake in Lake Erie, after being for ten months sunk in sixty feet water; and it was held on those facts that the original owner was not entitled to his action of trover against the finder who recovered the vessel. The right of property in goods abandoned from necessity at sea as derelict is not lost to the owners, and the finder is bound to consult the interest of the owners as well as his own as a salver. Case of the Amethyst, district court of Maine. 2 JV. Y. Legal Observer, 312.