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statute of distributions. If the father died first, the personal estate would have vested in the daughter, and, by her death, in her next of kin, who, on the part of the mother, was a different person from the next of kin on the part of the father. The right to succeed depended upon the fact which person died first, and that fact could not possibly be known, as the vessel perished at the same time. It was said to be the rule of the civil law, to found its presumptions on the relative strength, arising from the difference of age and sex of two persons; but these presumptions were shifting and unstable. The court did

different and the local laws different, and that the exercise of comity among different states was little more than a barren theory. This decision however it is to be observed, met the dissent of the Ch. Justice and of Mr. Mc Lean, and it cannot be received without much misgiving.

The Massachusetts Revised Statutes of 1835, part 2. tit. 4. ch. 70. sec. 21—26, have finally settled this question in that state. They direct, that if administration be taken out on the estate of a person who was of another state, or a foreigner, the estate after payment of debts, should be disposed of according to his will, if validly made according to the law of Massachusetts. If no will, the real estate descends according to the law of that state, and his personal estate is to be distributed according to the law of his domicil, after the payment of all debts for which he was liable in that state. The residue may be thus distributed by the probate court in which the estate is settled, or it may be transmitted to the executor or administrator, if any, in the place of the deceased's domicil, to be there disposed of, as the court, under the circumstances of the case, shall think best. If the deceased died insolvent, his estate in Massachusetts is to be disposed of as far as practicable equally among his creditors there and elsewhere. His estate is not to be transınitted to the foreign executor, or administrator, until the domestic creditors have received their just proportion of all the estate, wherever found, applicable to the payment of common creditors ; and the domestic creditors are to receive their just proportion before any other creditor shall be paid out of assets. After the domestic creditors have so received their just proportion, other creditors, who prove their debts, may then receive their proportion; but no one is to receive more than would be due to him, if the whole was to be divided rateably among all the creditors. The balance, if any, to be transmitted as aforesaid.

In Kentucky, the law of the domicil of the intestate is not regarded as to the succession to moveable property, so far as his creditors in that state are concerned. The administration for the benefit of creditors is regulated by the lex loci rei site. Warren v. Hall, 6 Dana, 452.

not decide the question. The arguments on each side were equally ingenious and inconclusive. Lord Mansfield recommended a compromise, as he said there was no legal principle on which he could decide it. The same question arose again in the prerogative court, in 1793, in Wright v. Sarmuda. The husband, wife and children, all perished together, in a vessel, which foundered at sea; and Sir William Wynne, after a long and learned discussion, held it to be the most rational presumption that all died together, and that none could transmit rights to another. So, again in Taylor v. Diplock, in 1815,6 in a like case, Sir John Nicholl assumed, that the parties (who were husband and wife) perished at the same moment; and he could not decide on any survivorship in the case, and consequently granted administration to the representatives of the husband. The English law has hitherto waived the question, and, perhaps, prudently, abandoned, as delusive, all those ingenious and refined distinctions which have been raised on this vexed subject by the civilians. The latter draw

their conclusions from a tremulous presumption *436 resting on the dubious point, which *of the parties,

at the time, under the difference of age or sex, or of vigour and maturity of body, and quickness and presence of mind, was the most competent to baffle and retard the approaches of death.d

a 2 Phillimore, 266. n. Afterwarde, in Calvin v. Procurator General, 1 Hagg. Eccl. Rep. 350, Sir John Nicholl held the presumption of law in such a case to be, that the husband survived.

b 2 Phillimore, 261.

• So, also, in the case of Murray, in the English prerogative court, 1 Curteis, 596, the husband, wife and child perished together by shipwreck, and administration was granted on the husband's effects, as of a widower. And in Satterthwaite v. Powell, Ibid. 705, where husband and wife were drowned at the same time, the property passed 10 the next of kin of the party in whom it was vested, and neither party could claim as survivor. The wife's effects passed to her next of kin, to whom administration was granted. See also, the case of Coys v. Leach, 8 Metcalf, 371.

a This curious question was much discussed in the civil law, and the presumption as to which was the longest liver, vibrated between parent and child, according to circumstances. (Dig. lib. 34. tit. 5. ch. 10. sec. 1 and 4, and 23, 24, de Commorientibus.) It was also very ingeniously and elaborately handled in Causes Celebres, tom. iii. p. 4124432 ; and a number of cases cited. The decisions had not been steady or consistent. M. Talon, the eloquent avocat general, took a distinguished lead in the discussions. The ancient French jurisprudence had nothing fixed on the subject, and continued floating and uncertain, with a very shifting presumption in favour of one or another person, according to age and sex, and manner of the death, until the law was reduced to certainty by the Code Napoleon. (Toullier, Droit Civil Francais, tom. iv. No. 76.) By the Code Napoleon, No. 720, 721, 722, and by the Civil Code of Louisiana, No. 930—933, which has adopted the same provision, when two of the next of kin perish together, without it being possible to be known which died first, the presumption of survivorship is determined by circumstances. If the parties were both under fifteen years of age, the eldest shall be presumed to have survived. If above sixty, the youngest shall be presumed to have survived. If they were between the age of fifteen and sixty, and of different sexes, the male shall be presumed to have been the survivor, provided the ages were within a year of each other. If of the same sex, then the youngest of the two is presumed to have survived.

The cases on this difficult subject in the jurisprudence of the civil law, of the continental nations of Europe, and of England are collected and stated in Burge's Com. on Colonial and Foreign Laws, vol. iv. p. 11–29. The case of Pell v. Ball, on the same subject, occurred in the court of chancery in South Carolina, and was decided in January, 1840. (1 Cheve's Eq. Rep. 99.) The husband and wife both perished with many others in the dreadful destruction of the steamer Pulaski by explosion of a boiler in the night of June 14th, 1838, on her passage from Charleston to New. York. The wise (Mrs. Ball) was seen alive on the wreck for a short time after the explosion, but the husband was not seen after the explosion. Chancellor Johnston decided upon that fact in favour of the survivorship of the wise. There was a ground of probability founded upon positive proof of that fact, superior to any thing founded on arbitrary presumptions, and the decision was no doubt logical and correct.

LECTURE XXXVIII.

OF TITLE TO PERSONAL PROPERTY BY GIFT.

Title to personal property arising from transfer by act of the party may be acquired by gift, and by contract.

There has been much discussion among the writers on the civil law, whether a gift was not properly a contract, inasmuch as it is not perfect without delivery and acceptance, which imply a convention between the parties. In the opinion of Toullier,a every gift is a contract, for it is founded on agreement; while, on the other hand, Puffendorf had excluded it from the class of contracts, out of deference to the Roman lawyers, who restrained the definition of a contract to engagements resulting from negotiation. Barbeyrac, in his notes to Puffendorf,b insists, that, upon principles of natural law, a gift inter vivos, and which ordinarily is expressed by the simple term gift, is a true contract; for the donor irrevocably divests himself of a right to a thing, and transfers it gratuitously to another, who accepts it; and which acceptance, he rationally contends, to be necessary to the validity of the transfer. The English law does not consider a gift, strictly speaking, in the light of a contract, because

it is voluntary, and without consideration; where438 as a contract is defined *to be an agreement upon

sufficient consideration to do or not to do, a par

Droit Civil Francais, tom. v. Des Donations Entre Vif's, sec. 4, 5, and n. 1.

Droit Des Gens, liv. v. ch. 3. sec. 10. n. 6.

ticular thing. And yet every gift which is made perfect by delivery, and every grant, are executed contracts; for they are founded on the mutual consent of the parties, in reference to a right or interest passing between them.

There are two kinds of gifts; 1. Gifts simply so called, or gifts inter vivos, as they were distinguished in the civil law ; 2. Gifts causa mortis, or those made in apprehension of death. The rules by which they are governed are different, and quite distinct, and they were taken from the Roman law.

1. Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. Delivery is essential, both at law and in equity, to the validity of a parol gift of a chattel or chose in action ; and it is the same whether it be a gift inter vivos, or causa mortis.b Without actual delivery, the title does not pass. A mere intention, or naked promise to give, without some act to pass the property, is not a gift. There exists the locus pænitentiæ, so long as the gift is incomplete, and left imperfect in the mode of making it; and a court of equity will not interfere and give effect to a gift lest inchoate and imperfect. The necessity of delivery has been maintained in every period of the English law. Dona. tio perficitur possessione accipientis, was one of its ancient maxims.d The subject of the gift must be certain,

* 2 Blacks. Comm. 442.

• Irons v. Smallpiece, 2 Barnu. g. Ald. 551. Bunn v. Markham, 7 Tount. Rep. 227. Bryson v. Brownrigg, 9 Vesey, l. Antrobus v. Smith, 12 Ibid. 39. Hooper v. Goodwin, 1 Swanst. Rep. 485. Sims v. Sims, 2 Alab. Rep. N. S. 117. Noble v. Smith, 2 Johnson, 52. Adams v. Hayes, 2 Iredell, N. C. Rep. 366. But though the two cases first mentioned do not advert to any distinction between gifts inter viros, and gifts causa mortis, there are cases which do make it, and consider a gift inter vivos, by parol, accompanied by acceptance, good to pass the property, without actual delivery of the chattel. Com. Dig. tit. Biens, D. 2. 2 Manning of Granger, 691, note c.

• Antrobus v. Smith, 12 Vesey, 39. Pennington v. Gittings, 2 Gill of Johns. 208.

1 Jenk. Cent. 109, case 9. Bracton, de acquirendo rerum Dominio, lib.

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