ary was brought to the church with the corpse, and hence it was called a corse-present, as it was then a voluntary donation. In the time of Henry III, it had become an established custom, so that a bequest of heriots and mortuaries was held necessary in every testament of chattels. A statute of Henry VIII affixed a stated sum for the mortuary, proportioned to the appraised value of the estate. No mortuary is due at the death of a feme covert, or of a child, or of a man who is not a housekeeper, or of a wayfaring

man.

3. Heir-looms. These are such goods and personal chattels, as contrary to the nature of chattels, shall go by special custom to the heir with the inheritance, and not to the executor. The termination loom, means limb, so that an heir-loom is a member of the inheritance. Heir-looms are generally such things as cannot be taken away, without damaging the freehold. Deer in an authorized park, and fishes in a pond, though personal chattels, yet being annexed to the inheritance, go with it, accompanying the land, whether it vests by descent or purchase. Title deeds, with the chest in which contained, also go to the heir, and in some places, carriages, utensils, and other household goods are deemed heir-looms, but such custom must be strictly proved.

Fixtures. By almost general custom, whatever is strongly affixed to the freehold, and cannot be severed except by violence or damage, shall pass to the heir.

Rights of the Heir. Other personal chattels also are deemed heir-looms, as a tombstone in a church, or the coat-armor of an ancestor, there suspended, with ensigns of honor. Pews are somewhat of the same nature, which may descend by immemorial custom to the heir.

Dead Bodies. But the heir has no property in the body or ashes of his ancestors, nor can he bring a civil action against those who violate or disturb their remains, when buried. The person, who has the freehold of the soil may do this, and if the shroud be stolen by one who takes up the body, it is felony, for the property thereof remains in the executor, or whoever had charge of the funeral.

Not Affected by a Devise. Though heir-looms are mere chattels, yet they cannot be devised away from the heir by will, but such a devise is void, even by a tenant in fee-simple.

Though the owner in his life time might have sold or disposed of them, as he might of the timber of his estate, yet they, at his death, being instantly vested in the heir, the devise shall be postponed to the custom, whereby they have already descended.1

CHAPTER XXIX.-TITLE BY, SUCCESSION, MARRIAGE

AND JUDGMENT.

TITLE BY SUCCESSION.

Where Applicable. The fifth method of gaining a property in chattels, either personal or real, is by succession, which, in strictness of law, is only applicable to corporations aggregate, in which one set of men, by succeeding another set, may acquire the property of the corporation. The true reason whereof is because, in law, a corporation never dies. Even if the succession be not expressed in a grant to a corporation, the law itself will imply it. So that a gift to a corporation, either of lands or chattels, without naming its successors, vests an absolute property in it, so long as the corporation exists.

Sole Corporations. With regard to sole corporations, a distinction must be made. If such corporation be the representative of a number of persons, it has the same power as a corporation aggregate, to take personal property in succession. If, however, the sole corporation represent no others than itself, as bishops and the like, no chattel interest can regularly go in succession, and therefore if a lease for years be made to a bishop and his successors, his executors or administrators, and not his heirs, shall have it. The word "successors," when applied to a person in his political capacity is equivalent to the word "heirs," in his natural capacity.

Right of Succession. The general rule, with regard to corporations sole, is that no chattel can go to or be acquired by them in right of succession. To this rule there are two exceptions. One in the case of the king, in whom a chattel may vest, by

1 The term heir-loom is often also applied to pictures, plate and furniture.

a grant of it made to a preceding king and his successors. The other exception is where, by a particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. The rule is this: that such right of succession to chattels is 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.

TITLE BY MARRIAGE.

Property Vested in Husband. The sixth mode of acquiring personal property 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.

Unity of Interest of the Parties. This depends entirely on the notion of unity of person between the husband and wife, it being held, that they are one person in law, so that the very existence of the woman is suspended during the coverture, or entirely merged into that of the husband.

Distinction as to Real and Personal Estate. Hence it follows, that whatever personal property belonged to the wife before marriage, is by marriage absolutely vested in her husband. In real estate, he only gains a title to the rents and profits during coverture, which on feudal principles remains entire to the wife after her husband's death, or to her heirs, if she die 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 reduces them to possession, by exercising some act of ownership; otherwise the property remains in the wife, or to her representatives, after the coverture is determined.

Acquisition of Chattels. There is a marked difference in the acquisition of this species of property by the husband, 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.

Chattels Real. A chattel real vests in the husband, not absolutely, but sub modo. As in the case of a lease for years, the

husband shall receive all the rents and profits, and may sell, surrender or dispose of it, during the coverture. If he be outlawed or attainted, it shall be forfeited to the king; it is liable to execution for his debts, and if he survives his wife, it is to all intents and purposes his own. Yet if he has made no disposition thereof in his lifetime, and dies before his wife, he could not dispose of it by will, 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 ancient possession, and it shall not go to his executors.

Choses in Action, So also of chattels personal or in action, as debts upon bonds, 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. And upon such receipt or recovery, they are absolutely his own, and shall go to his executors or his administrators, 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 continue choses in action, they shall survive to the wife, for the husband never exerted his power to obtain them. This is also the case, if an estray enters the wife's franchise, and the husband seizes it. It then becomes his absolute property.

Distinction between Chattels Real and Personal. In both these species of property, the law is the same, where the wife survives the husband, but where the husband survives the wife, there is a marked difference; for he shall have the chattel real by survivorship, but not the chose in action, except in the case of arrears of rent due the wife before her coverture, which, in case of her death, belong to her husband by statute. The reason for this difference in the general law is this: the husband is in absolute possession of the chattel real during the coverture, by a kind of joint tenancy with the wife, and the law will not wrest it from him, and give it to her representatives, though should he die first, it would have survived to the wife, unless he had altered the possession. But a chose in action shall not survive to him, because he never was in possession of it during the coverture, and the only method he had to gain possession was by suing in his wife's right, which he could not do after her death. But he may be her administrator, and may in that capacity recover such things in action, as became due to her before or during the coverture.

Choses in Possession. As to chattels personal or choses in possession, which the wife has in her own right, as ready money, jewels, household goods and the like, the husband has therein an immediate and absolute property devolved in him by the marriage, which never can again revest in the wife or her representatives.

Wife's Paraphernalia. In one 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, a term used in the civil law, and derived from the Greek, signifying something over and above her dower. In our law, it signifies the apparel and ornaments of the wife, suitable to her rank and degree. These she retains at the death of her husband, over her jointure or dower. The husband cannot bequeath by his will such ornaments and jewels of his wife, though perhaps during his life he might have the power to dispose of them. But if she continues in their use until her husband's death, she shall afterwards retain them against all persons, except creditors, where there is a deficiency of assets.1

TITLE BY JUDGMENT.

Effect. A judgment, in consequence of an action in court, is frequently the means of vesting the right and property of chattel interests in the prevailing party. We must distinguish between property, the right of which is before vested in the party, and of which only possession is recovered by suit; 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 judgment of law. Of the former sort are all debts and choses in action, as bonds or contracts, in which cases. the right accrues to a creditor, and is completely vested in him, at the time the bond was sealed or the contract made, and the law only gives him a remedy to recover possession of that right, which already belongs in justice to him.

Exceptional Kind of Property. But a species of property exists, to which a man has no claim or title till after suit commenced and judgment obtained in a court of law, where the

1 In such case, where this personal property is seized by creditors of the husband, the wife may recover its value from the heir, where the real estate is sufficient.