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9. To render a deed valid and operative, there must be a delivery to the grantee, or some one for his use, or a delivery into the proper recording office.
Frisbe, et ux. v. M’Carty, 1 S. & P. 56. 10. A deed to A B and C, who had become securities on a writ of error bond conditioned for the payment of the judgment in the event of its affirmance--held not to be made alone for the indemnity of the three securities, but that it went generally to the payment of the judgment. Ibid.
11. A freehold of lands to take effect in futuro, may be conveyed upon condition of natural love and affection, without livery of seisin when the deed reserves to the grantor a life estate in the premises, and such reservation will be construed into a covenant to stand seized to the use of the grantor.
Hawkins, et al. v. Coulter, 2 P. 463. 12. Under the statute 1812, a limitation of real estate by deed to a succession of donees, will not be deemed valid in securing such estate without the adoption of the terms prescribed by it; and when a deed contains no clause adopting the terms of the statute and the limitations there prescribed, the donee takes an absolute estate in fee simple.
Ilid. 13. A deed to B, and the legal heirs of his body forever,” creates an estate tail in B, and is embraced within the statute 1812.
Ibid. 14. That part of the ordinance, for the government of the territory of the United States, which authorized estates to be conveyed by deeds of release, or bargain and sale, attested by two witnesses, was repealed in this State by implication, by the act of 1803, which makes a deed acknowledged and certified, according to its provisions, as valid as if attested by witnesses.
Wiswall v. Ross f. Earle, 4 P. 321. 15. The statute 1812, which prescribes the method in which the probate of deeds may be takeu, sets out a form which in substance must be pursued; and a deviation from the mode prescribed in the act, is ground of
The essentials of a probate required by this statute, are that the witness should swear to the subscription of all the parties, setting out their names; that the witnesses subscribed in the
presence of the principals in the deed, and in the presence of each other, and on the day and year
named in the deed.
Fipps v. McGehee, 5 P. 413. 16. And when a probate of a deed only set forth, that a subscribing witness appeared and made oath, that he saw "the same” signed, sealed and delivered, for the purposes therein mentioned, and that B & H signed the same, at the time said deed was executed, as witnesses—held defective, as not complying with the statute 1812.
Ibid, 17. The certificate of a judicial officer or clerk of a court, of the acknow, ledgment or proof of a deed, need not be under seal; and the hand writing of the judge or clerk taking the acknowledgment, may be proved in open court by any witness acquainted with it.
Powers v. Bryant, adm. 7 P. 9. 18. The county court acting officially has no authority to take an acknowledgment of a deed.
Munn & Griffin v. Lewis, 2 P. 24. See County Court-Debtor and Creditor-Evidence-Lex Loci-Sheriff,
DESCENT AND DISTRIBUTION.
1. Under the statute of distributions, the descendants of brothers and sisters as to all other kindred, occupy the situation of their respective parents.
Hitchcock, et al. v. Smith, 3 $. & P. 29. 2. So the children of a deceased brother or sister of the whole blood, are to be preferred to brothers and sisters of the half blood.
Ibid. 3. See bill filed by distributee, for his distributive share, to compel distribution,
Draughun , 4 .
} 4. A decree ascertaining the amount of a distributive share in an estate and giving judgment thereon, cannot be entered nunc pro tunc, upon the
proceedings had on final settlement of an estate, previous to the passage of statute 1832.
Blackwell ex'r. v. Meneese, 5 S. & P. 397. 5. Judgment against executors for a legacy or distributive share of a feme covert, in an estate, rendered on proceedings in the name of the husband alone, is erroneous.
Ibid. 6. When an estate has passed into the hands of heirs and distributees, Chancery will not lend its aid to inforce a debt due by the estate, where the representative has committed a devastavit, until the ordinary legal remedies have been employed unsuccessfully against the representative and his securities.
Pyke v. Searcey, et al. 4 P. 52. 7. Cases may present themselves, when the Orphans' Court would pass on the accounts of an executor, and yet have no power to order a distribu-, tion.
Portis v. Creugh, 4 P. 332. 8. The representative of an administrator is liable directly, to a creditor or distributee for assets of an estate, wasted or converted by him.
Draughan v. French, udm. 4 P. 352. 9. The power given by statute to the County and Orphans' Court, over the distribution of an intestate's estate, does not divest Chancery of jurisdiction.
Dobbs et ul. v. Distributees of Cockerham 2 P. 328.
See Chancery-Citation-County & Orphans' Court.
10. When a slave is hired until demanded, a special demand is necessary to maintain this action.
Grice v. Jones, adm. 1 S. 254. il. Detinue cannot be maintained, unless the plaintiff has the entire interest in the chattel sued for.
Bell & wife v. Hogan, 1 S. 536. 12. In detinue against one sued individually, it is no defence that the defendant is an administrator, and that the conversion was by him only as such and jointly with a co-administrator, who is not sued.
Smith v. Wiggins, 3 S. 221. 13. The jury are to determine the value of the property and when it was not proven; to sustain their verdict, it was lield they might lawfully have drawn the inference of the value from proof of the hire.
14. A plea in detinue for slaves, that they had been in defendant's possession for four years, in another State, and that by the laws of such State, such possession vested a title in the holder-is bad; not being sufficiently definite and full.
Curpenter v. Jeter, 4 S. & P. 326. 15. An executor may maintain detinue for the title papers of land owned by testator, without a special averment in the declaration of his right
Cummins v. Tindall, ex'r. 4 S. & P. 357. 16. In detinuc for the patents of several tracts of land, the jury should assess the value of each patent separately, and an omission to do so is error.
Ibid. 17. In detinue by mortgagor of a slave redeemable by the terms of the deed at a certain day, the mortgagor may show by parol proof a verbal agreement to extend the period of redemption, and an offer to discharge the mortgage in pursuance of such extension.
Derharo v. Lewis,, 5 S. & P. 91. 18. In detinue for slaves, it seems that the verdict should be governed by the value of the slaves at the time suit is brought or demand made.
White, et ux. v. Ross, 5 S. & P. 123. 19. The death of slave during the pendency of the action will not discharge the judgment and Chancery would have no power to interpose on this ground.
Ibid. 20. May be maintained by trustees for the trust fund.
Baker v. Washington & Washington, 5 S. & P. 142. 21. That a party forcibly took property out of possession of plaintiff, cannot effect his right to recover, in this form of action.
Carroll v. Puthkiller, 3 P. 280. 22. Damages for the hire of slave are recoverable from the time of demand.
lbid. 23. A bond given by plaintiff, under the statute 1830, after the levy, is good on demurrer, as a common law bond; and the court will not presume that a previous bond, in strict compliance with the statute, had been given to the clerk: if such had been the case it should have been pleaded.
Reid v. Brashers, 3 P. 378. 24. In detinue for recovery of a slave, bought by plaintiff at a constable's sale, but which was afterwards sold by defendant in execution to the defendant in detinue; evidence of general notoriety, that the slave had been purchased at constable's sale by plaintiff, when offered to raise a presumption of the knowledge of plaintiff's claim, on the part of defendant in detinue, is not admissible.
State v. Worthington, 7 P. 266. 25. But in such an action, the bill of sale to the slave, executed by the constable to the purchaser is admissible, as conducing to prove a title in the plaintiff, and the fact of the sale: and it is not necessary, for the introduction of such evidence, to show that a judgment and execution had been obtained against defendant in execution.
DEVISE, LEGACY AND BEQUEST.
1. In this State a legacy may be recovered of an executor by an action at law, though the most appropriate remedy is in chancery.
Pettigrew v. Pettigrew, 1 S. 580.
2. A devise to certain heirs, and also to the heirs of one deceased, “to be equally divided among each,” vests in the latter only one share.
Bilingslea v. Abercrombie, 2 S. & P. 24. 3. Devise of two quarter sections of land to a daughter; the land purchased from the United States, and purchase money paid-held that the court of chancery would compel executor to pay the balance due United States, and perfect the daughter's title, it appearing that her share would only equal the legacies given off by said will to the other daughters.
Greene, et ux. v. Moore, ex'r. 1 $. & P. 212. 4. Devise to daughter of certain slaves during her natural life, and if she should leave heirs of her body, then to such heirs forever. But on failure of such heirs, to be divided among the four children of testator. The remainder is good and not too remote. Bell & Wife v. Hogan, 1 S. 536.
5. When slaves by will were lent to a daughter during her life, and on failure of the heirs of her body, remainder to others; and afterwards before the testator's death, the daughter was married, and the slaves go into the possession of the wife and husband, it appearing by the facts of the case that the husband always recognized and admitted the limitation of the right in the slaves, he cannot afterwards set it up as a parol gift, and thus defeat the limitation.
Hogan v. Bell, et al. 4 S. & P. 286. 6. In such devise the interest of the residuary legatees was assignable in their lives, and descendible on their decease to their legal representatives.
Ibid. 7. When a testator declared by his will that certain estate should be equally divided among his children, and stated that certain amounts received by them should be rendered to the estate before being entitled to distribution, and among those who had obtained advancements, named his son T, as having in his life-time received a specified amount_it was held that T. D., the son of T. and grand-child of the testator, was included in the term children.
Ibid. 8. As a general rule when a legacy is given to be paid or payable at a futurę day, the legacy vests—and if the legatee dies before the time arrives, the interest in the legacy will pass to his personal representative—but whenever time is annexed to the payment of a legacy, and there is no express gift of the legacy, the legacy will not vest until the happening of the event, unless it appear from other parts of the will that it was the intention of the testator that the legacy should vest immediately.
Gregg, et al. v. Bethea, 6 P. 9. 9. When probate of a will had taken place in 1821, and no application was made for setting apart a sum of money for an infant legatee of a vested legacy until 1835, and the executor being cited to show cause why a sum should not be set apart, failed to appearit was inferred that the estate was settled.
Ibid. 10. When a testator gave a wife a life estate in certain negroes, and then declared that at her death they were equally to be divided by valuation between his two daughters, or should either of them die without issue, the other to get the whole of the negroes and their increase,"—it was held that the two daughters took vested remainders, subject only to the contingency of their being alive at the time of the death of the wife.
McGraw v. Davenport f Wife, 6 P. 319. 11. The words “die without issue" when used in a will as a limitation over of personal property, not explained or controlled by any other circumstance or language indicating a different intention, import an indefinite failure of issue and create a perpetuity, which is not permitted; and the effect of such limitation, is in law to vest the absolute property in the first taker.
great diversity exists as to the circumstances or language which would be
construed to be necessary to confine the limitation over to a dying without issue at the death of the first taker.
Ibid. 12. If the distinction first taken in the case of Forth v. Chapman, (1 P. Williams, 663,) between real and personal property was true—but which is doubtful the distinction fails when applied to a mixed bequest of male and female negroes, or of female negroes only.
Ibid. 13. The rule in Shelly's case (1 Salk. ) is merely a sacrifice of the particular to the general intent of the testator.
Ibid. 14. B bequeathes to his daughters S and A, each eight negroes which they then possessed, and to his other daughters each a lot of negroes, equal in value to those given to S and A, to be allotted to them when they respectively married or came of age-held that “equal in value” was referable to the age, comliness, and number, &c.of the negroes, and not to the fluctuating or casual money value at the time the younger daughters should become entitled.
Moore, ex'r v. Dudley & Wife, 2 S. 170. 15. When an equal portion of certain slaves are devised to B, a grandson, when A arrives at the age of twenty-one years—held that B was entitled to his proportion of the hire from the time of testator's death.
Guardian of Christian v. Christian, adm'r.3 P. 350. 16. When a legacy is given generally without appointing the time for its payment, it vests immediately upon the testator's death, though it be not demandable until the expiration of the period defined by law after the grant of letters testamentary; and if the legatee die before he is allowed to adopt coercive measures with a view to its recovery, his personal representative will be entitled to the legacy.
Marr, ex'r. v. M'Cullough, adm'r. 6 P. 507. 17. Legacies, payable after the death of a testator, are either vested or contingent, and when the testator annexes time to the payment, only the legacy will be vested, but if to the gift itself, it will be contingent. Ibid.
18. When it appears from the construction of the whole will, that the testator intended that the legacy should not vest until the time prescribed for the payment; and when the event upon which the payment is directed, is uncertain, then the legacy will not be vested upon the maxim dies incertus in testamento conditionem facit.
Ibid. 19. When a legacy is contingent, no interest will pass to the executor or administrator of the legatee, if he die before the period arrive for the legacy to vest.
Ibid. 20. It has been often held that a personal legacy to be paid upon a future uncertain event, with a direction to pay to the legatee the entire interest accruing in the meantime, sufficiently indicates that it was not the testators intention to make the legacy conditional.
Ibid. 21. Yet it has been said that a legacy payble at a future time will not vest where less than the whole amount of interest is ordered to be paid annually, or where it is to be paid out of another fund, or where the legacy is given out of real estate.
Ibid. 22. But if from a view of the whole will, it appear that the testator intended to make the interest a subject of bequest until a future period, and the principal was then for the first time to be taken out of the residuum of the estate and paid to the legatee, the legacy does not vest the gift of the principal, and interest is separate and distinct, and the time for the payment of the principal is of the essence of the gift.
Ibid. 23. When the corpus of a legacy was given to executors as trustees, with a postponement of the payment to an indefinite period, depending upon an exercise of their discretion, with the direction that the interest should be paid