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BOOK I

MEDIA OF DESCENT

1. Effect of death on ownership of property.

The death of a person does not deprive his property of an owner. The effect is simply to transfer title to another. Who that other is, however, and his rights with respect to the property, is not so readily known. The identity of the new owner and the extent of his title must be determined by a judicial review of all the circumstances surrounding the deceased owner, his family, the nature of his estate, and the existence or absence of any testamentary directions on his part. Pending this investigation the right of possession and disposal is held in abeyance. If it be found that the former owner has omitted to express any wishes as to the distribution of his property, his heir is to be identified by reference to the statutes applicable in cases of intestacy. On the other hand, he may have executed a will, or a deed of trust intended to take effect on his death, containing directions as to his successor,

I

as well as limitations upon the latter's rights and powers respecting the inheritance. In any event, the receipt and enjoyment of the inheritance must await the identification of the property and its reduction to possession, the ascertainment and payment of the deceased owner's debts, and finally the accounting and discharge of the person to whom the law has confided its temporary management. All these matters are spoken of as the Administration of the Estate, and their consideration forms the subject matter of the following pages. And first, respecting the means by which the ownership of property may descend, whether by deed, by will, or by operation of law.

2. Distinction between wills and deeds.

Aside from the very vital difference in the manner in which they are respectively executed -as will be explained later—the chief difference lies in the purpose for which the instruments are intended. A will must be testamentary in its character; i.e., it must be intended as a disposition of property to take effect only on the testator's death. In the meantime it is subject to alteration or revocation as often as it suits the testator's fancy. An instrument transferring shares of stock to a trustee which reserved to the donor the income during his lifetime; the right to direct how the trustee should vote thereon; the power to cause the trustee to sell the stock in such manner and at such price as the donor might direct; the right of revocation at any time during the lifetime of the donor and directing distribution upon his death, is testamentary in character.

On the other hand a deed becomes effective at once upon delivery to the grantee, and is not revocable at all, unless that right is especially reserved. Thus, an instrument which passes a present interest in property, even though its possession and enjoyment may not occur until some future time (at the grantor's death, for instance), is a deed and not a will.

Another distinction lies in the fact, that a deed proves itself, without more than a notarial certificate, but the execution of a will is required to be established by the testimony of its witnesses.

3. Deeds of Trust.

A transfer of property to a trustee for the immediate benefit of a third person is a method commonly followed, but as it does not come within the scope of our present inquiry it need not be further considered. But when, for instance, a grant is made to another in trust for the grantor's benefit during his life and upon his death to divide the subject matter of the grant among

designated individuals, this transaction is about as effective as a will in the descent of property. The validity of such a trust is governed by the same principles as regulate trusts contained in a testament, which will be explained later.

If the property in question is land, the instrument must be in writing and must clearly set forth the purpose of the trust and the designation of the beneficiary. Moreover, the purpose must be lawful (see § 26), and, except in the case of charities (see 31) the beneficiary must be definite and certain, or at least capable of being made so by competent evidence (see $ 9).

Courts have been fairly liberal in determining what kind of a writing will satisfy the rule which requires such instruments to be in writing. Thus it has been said that there may be several writings, provided they are connected and, when construed together, evidence the intention to create a trust.

On the other hand, a trust of personal property, that is, of property other than lands, may be created for any purpose not forbidden by statute or contrary to public policy, and need not be in writing.

4. Transfers Mortis Causa.

We must not omit to notice this species of transfer which comes to us from the Civil law.

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