1902 Encyclopedia > Personal Estate

Personal Estate




PERSONAL ESTATE. Strictly speaking, the term ESTATE (q.v.) is confined in English law to the extent of interest which can exist in real property. But "personal estate" is a term often conveniently, if not accurately, applied to all property that is not real property. The division of property into real and personal represents in a great measure the division into immovable and mov-able incidentally recognized in Roman law and generally adopted since. " The only natural classification of the objects of enjoyment, the only classification which corre-sponds with an essential difference in the subject-matter, is that which divides them into moveables and immove-ables " (Maine, Ancient Law, ch. viii.). " Things personal," according to Blackstone, " are goods, money, and all other moveables which may attend the owner's person wherever he thinks proper to, go" (Comm., vol. ii. p. 16). This identification of things personal with movables, though logical in theory, does not, as will be seen, perfectly express the English law, owing to the somewhat anomal-ous position of chattels real. In England real property is supposed to be superior in dignity to personal property, which was originally of little importance from a legal point of view. This view is the result of feudal ideas, and had no place in the Roman system, in which immov-ables and movables were dealt with as far as possible in the same manner, and descended according to the same rules. The law of personal property has developed more rapidly and freely than that of real property, as it is of more modern growth and has not been affected by the notion of tenure. The main differences between real and personal property which still exist in England are these. (1) In real property there can be nothing more than limited ownership (see ESTATE) ; there can be no estate properly so called in personal property, and it may be held in complete ownership. There is nothing correspond-ing to an estate-tail in personal property; words which in real property would create an estate-tail will give an absolute interest in personalty. A life-interest may, however, be given in personalty, except in articles quee. ipso usu consumuntur. Limitations of personal property, equally with those of real property, fall within the rule against perpetuities. (See REAL ESTATE.) (2) Personal property is not subject to various incidents of real property, such as rent, dower, or escheat. (3) On the death of the owner intestate real property descends to the heir ; personal property is divided according to the Statute of Distribu-tions. (4) Real jiroperty as a general rule must be trans-ferred by deed ; personal property does not need so solemn a mode of transfer. (5) Contracts relating to real pro-perty must be in writing by the Statute of Frauds, 29 Car. II. c. 3, s. 4; contracts relating to personal property need only be in writing when it is expressly so provided by statute, as, for instance, in the cases falling under s. 17 of the Statute of Frauds. (6) A will of lands need not be proved, but a will of personalty or of personal and real property together must be proved in order to give a title to those claiming under it. (7) Devises of real estate fall as a rule within the Mortmain Act, 9 Geo. II. c. 36 (see CHARITIES, CORPORATION) ; bequests of personal pro-perty, other than chattels real, are not within the Act. (8) Mortgages of real property need not generally be registered; mortgages of personal property for the most part require registration under the Bills of Sale Acts (see PLEDGE ; and BILL OF SALE, vol. iii. p. 674).

Personal estate is divided in English law into chattels real and chattels personal; the latter are again divided into choses in possession and choses in action. Chattels real are personal interests in real estate, which, though they are annexed to land, still descend in the same manner as personal estate. Blackstone speaks of them as being " of a mongrel amphibious nature." Examples are a term of years, the next presentation to a benefice, an estate pur autre vie, and money due upon a mortgage. Under the head of chattels personal fall all kinds of property other than real estate and chattels real. In cases of bequest to a charity the terms pure and impure or mixed personalty are often used. The latter class is almost conterminous with chattels real. It falls as a rule within the Mortmain Act. A chose in action denotes the right of recovery by legal proceedings of that which, when recovered, becomes a chose in possession. Choses in action were before the Judicature Acts either legal, as debts (whether arising from contract or tort), recoverable in a court of law, or equitable, as legacies (residuary personal estate of a deceased person), or money in the funds. A legal chose in action was not assignable. A consequence of this view was that until 1875 (subject to one or two statutory ex-ceptions, such as actions on policies of insurance) an action on an assigned chose in action must have been brought at law in the name of the assignor, though the sum recovered belonged in equity to the assignee, and in equity he might have sued in his own name, making the assignor a party as co-plaintiff or as defendant. The Judicature Acts have made the distinction drawn between legal and equitable choses in action of no importance. The Judicature Act, 1873, 36 and 37 Vict. c. 66, s. 25, (6), enacts that the legal right to a debt or other legal chose in action may be passed by absolute assignment in writing under the hand of the assignor. The old law as to the reduction into possession by a husband of his wife's choses in action (see HUSBAND AND WIFE) seems to have been practically rendered obsolete by the Married Women's Property Act, 1882. Blackstone, who is followed by Mr Joshua Williams (Law of Personal Property), recognizes a further division of incorporeal personal property, standing between choses in action and choses in possession, and including personal annuities, stocks and shares, patents, and copyrights.





Interest in personal property may be either absolute or qualified. The latter case is illustrated by animals feree, naturse, in which property is only coextensive with detention. Personal estate may be acquired by occupancy (including the accessio, commixtio, and confusio of Roman law), by invention, as patent and copyright, or by transfer, either by the act of the law (as in bankruptcy, judgment, and intestacy), or by the act of the party (as in gift, con-tract, and will).

There are several cases in which, by statute or other-wise, property is taken out of the class of real or personal to which it seems naturally to belong. By the operation of the equitable doctrine of conversion money directed to be employed in the purchase of land, or land directed to be turned into money, is in general regarded as that species of property into which it is directed to be converted. An example of property prima facie real which is treated as personal is an estate pur autre vie, which, since 14 Geo. II. c. 20, s. 9 (now replaced by 1 Vict. c. 26, s. 6), is distributable as personal estate in the absence of a special occupant. Examples of property prima facie personal which is treated as real are FIXTURES (q.v.), heirlooms, such as deeds and family portraits, and shares in some of the older companies, as the New River Company, which are real estate by statute. In ordinary cases shares in com-panies are personal estate, unless the shareholders have individually some-interest in the land as land. , The terms heritable and movable of Scotch law to a great extent correspond with the real and personal of English law. The main points of difference are these. (1) Leases are heritable as to the succession to the lessee, unless the destination expressly exclude heirs, but are movable as to the fisk. (2) Money due on mortgages and securities on land is personalty in England. At common law in Scotland debts secured on heritable property are themselves heritable. But by 31 and 32 Vict. e. 101, s. 117, heritable securi-ties are movable as far as regards the succession of the creditor, unless executors are expressly excluded. They still, however, remain heritable quoad fiseum, as between husband and wife, in computing legitim, and as far as regards the succession of the debtor. (3) Up to 1868 the heir of heritage succeeded to certain movable goods called heirship movables, which bore a strong likeness to the heirlooms of English law. This right of the heir was abolished by 31 and 32 Vict. c. 101, s. 160. (4) Annuities, as having tractwm futuri temporis, are heritable, and an obligation to pay them falls upon the heir of the deceased (Watson, Law Diet, s.v. "Annuities").

The law in the United States agrees in most respects with that of England. Heirlooms are unknown, one reason being, no doubt, that the importance of title-deeds is much less than it is in England, owing to the operation of the Registration Acts. Long terms in some States have annexed to them the properties of freehold estates. Thus in Massachusetts, if the original term be a hundred or more years, it is deemed a fee as long as fifty years remain unexpired (Mass. Gen. Stat., c. 90, § 20). In the same State estates pur autre vie descend like real property (Gen. Stat., c. 91, § 1). In New York and New Jersey an estate pur autre vie is deemed a freehold only during the life of the grantee ; after his death it becomes a chattel real. In other States the heir has a scintilla of interest as special occupant (Kent, Comm., vol. iv. p. 27). In some States railway rolling-stock is considered as purely personal, in others it has been held to be a fixture, and so to partake of the nature of real property. Shares in some of the early American corporations were, like New River shares in England, made real estate by statute, as in the case of the Cape Sable Company in Maryland (Schouler, Law of Personal Property, vol. i. p. 619). In Louisiana animals employed in husbandry are, and slaves were, regarded as immovables. Pews in churches are generally real property, but in some States they are made personal property by statute, e.g., in Massachusetts (Gen. Stat., c. 30, § 38). The assignment of choses in action is generally permitted, and is in most States regulated by statute. The circuit court has no jurisdiction in the case of an assigned chose in action unless a suit might have been prosecuted in that court if no assignment had been made (Prevised Stat, of U. S., tit. xiii. § 629). (J. W†.)






The above article was written by: James Williams, B.C.L.



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