These changes embrace, among other matters, the subject of the liability of estates which may descend, to the debts and obligations incurred by the ancestor, and the different modes of collecting and enforcing the same; questions of contingent remainders, executory devises and advancements, of marriages and the evidence thereof, and all other questions growing out of, or incidental to, the laws of inheritance as they now exist in the several States of this country. Two general purposes are sought to be fulfilled in the preparation of this work: First, to put the student in possession of all knowledge necessary to a clear and familiar understanding of the origin, operation and principles of the laws of inheritance, as they now exist, including all the incidental questions connected therewith; and, second, to place before the practical lawyer the adjudications upon the dif ferent points and questions from the reported decisions of England, and of the several States of this country, so fully set forth, explained and reviewed, that he can learn therefrom what is necessary in order to understand the law and its practical application as so established, without having a copy of the decisions themselves before him. One consideration which induced the writer to undertake this work, was the apparent want of an elementary treatise which fully presented this branch of the law, as it has been established and is now in force in this country. Upon many of the points which are continually arising in practice, the lawyer will find but little to aid him in the elementary works generally, while the reported decisions of the several States are rich in their developments thereupon. For example, such is the case in regard to contingent remainders and executory devises. Elementary writers have generally followed in the footsteps of Fearne, whose classifications and distinctions are too artifical and merely fanciful to be of much, if any, utility in this country. They can furnish but little, if any practical aid, in the solution and adjustment of questions touching contingent interests, as such questions arise under our laws. While our system of laws touching this class of interests, has rules and principles of its own, of a much more practical character. They are to be found in the reported decisions of the courts of more than twenty different States, and have not heretofore been written up by the text-writers. That class of decisions and its rules and principles are set forth in this work, and will be found to have reduced contingent remainders and executory devises to a few plain and practical questions, within the ready comprehension and understanding of any ordinary mind. Advancements constitute another branch of the law of descents, which, although initiated in England, has become much more common in this country; and which has received but little attention from the elementary writers, compared to the place it holds in our reported decisions, and the importance it occupies in the adjustment of estates which pass by descent. That class of decisions is fully examined, and the law of advancements thereby shown to be within the reach of classification and system. In short, this work is designed to accomplish two general purposes: First, to educate the student to a better general knowledge of the laws of inheritance than he can find in any other elementary work; and second, to place in the hands of the practical lawyer the means of making a good brief, with the least possible labor, upon any of the questions which may arise in his practice under this branch of the law. ANSON BINGHAM. ALBANY, January 1, 1870. CONTENTS. WHAT RIGHTS ARE THE SUBJECT OF DESCENT; CLASSIFICATION INTO SECTION I. What rights are the subject of descent generally considered, SECTION II. Corporeal hereditaments; what they are and how consti- WHAT RIGHT OF PROPERTY IN LAND IS NECESSARY TO BE IN THE AN- CESTOR AT THE TIME OF HIS DEATH, IN ORDER TO DESCEND TO HIS HEIRS, IN CASE OF INTESTACY; THE COMMON LAW RULE AS TO THE SEISIN OF THE ANCESTOR, AND WHAT IS REALLY MEANT AND RE- REMAINDERS, WHEN SO VESTED AS TO CONSTITUTE THE REMAINDER- MAN THE STOCK OF DESCENT, AND WHEN NOT; THE ONE CLASS DISTIN- GUISHED AS VESTED, AND THE OTHER AS CONTINGENT REMAINDERS; DISTINCTIONS BETWEEN THE TWO CLASSES, AND THE RULES WHEREBY TO DETERMINE THE ONE CLASS FROM THE OTHER; THE REPORTED SECTION II. Cases where the remainder is held to have vested imme- diately on the death of the testator, so as to constitute the remainder- man the stock of descent, in case of his death intestate..... SECTION III. Cases where the remainder was held not to vest on the death of the testator, so as to constitute the remainderman the stock of descent; but was held to be postponed to a later period......... 95 SECTION IV. Cases where there is a temporary trust, express or implied, EXECUTORY DEVISES; ORIGIN OF AND WHAT THEY ARE; DISTINCTION SECTION I. Construction of the words "dying without issue". SECTION II. When "or" should be read "and," and "and" "or"..... 154 SECTION I. A remainder, at common law, requires a particular estate to be created and to exist at the same time.... SECTION II. The particular estate must be so constituted as to continue to exist until the contingent remainder shall become vested........ 165 SECTION III. The limitation upon which a contingent remainder de- pends must not be too remote; the same rules apply to executory devises; what is meant by remoteness; the rules that govern in that respect, and the periods of limitation allowed; reported cases and SECTION IV. The demise over must not be repugnant to the preceding devise; what is meant by repugnancy; examples of that character and the decisions thereupon examined and considered............. 179 SECTION V. The period of limitation; how measured; the ulterior limi- tation; the particular limitation; fixed by certain contingencies or conditions; what must be their character; must operate as conditions precedent to the vesting of the estate of inheritance; cases and authori- Third. The contingency or condition must operate as a condition precedent to the vesting of the estate of inheritance, and cannot be made to operate to divest the estate after it is once vested... 206 SECTION VI. Can a contingent remainder constitute the party to that interest the stock of descent, until the remainder has become vested by the happening of the contingency? cases and authorities upon that question examined and reviewed.... SECTION VII. The rule in Shelley's case; when it applies; its effect.. 233 |