I. RIGHTS ΤΟ taken down by an attorney from the deceased's dictation and CHAP. III. not signed by him, but of which he approved, is a sufficient will; (u) and where the testator wrote a paper as his will, but PERSONALTY. left it incomplete for want of signature and attestation, which requisites it was proved he intended up to the time of his death to add, but was prevented from effecting by the act of God, such paper was established as a will; (v) and even alterations in pencil on a regularly executed and attested will have been admitted to probate. (r) As any paper written by a party or by his directions might operate as his will, unless qualified by some expression, the prudent course, in case of a mere projected will, which a person may wish to have by him ready for slight alteration or for signature at any instant, would be to adopt the form recently used by a late very learned Chief Justice, viz. "This paper is intended to become and contains the last will and testament of me, A. B., of, &c. so soon as I shall have signed the same, but not sooner." I desire, &c. Then stating the particular directions and bequests as in a perfect and complete will; and the conclusion of such intended will and attestation may be thus: "And I nominate the said E. F. and G. H., &c. executrix and executor of this my will. In witness whereof, I have hereunto set my name and subscribed this paper, this A. D. (leaving a blank for the signature of the testator's name), and with the following already written attestation. Signed, published, and declared by the said A. B. as and for his last will and testament, in the presence of us, who, in his presence and at his request, have set our names as witnesses hereunto." (y) And when the testator had perfected his will by his signature, three witnesses wrote their names and additions at the bottom of the attestation. It must, however, be remembered that the completion of such a projected will may be prevented by accident or sudden death, and therefore when it is the intention of a party to dispose of his property to persons materially different to the distribution in case of intestacy, the only certain course is actually and completely to execute a concise and explicit short will, and to have another intended will more in detail ready to be executed, if circumstances will allow. day of A will of personalty may be by fraud as to the residue, (z) (u) 2 Phil. Ec. C. 177. () 1 Phil. Ec. C. 12, 58, 59. (1)2 Phil. Ec. C. 173; 1 Phil. Ec. C. 22; see further 2 Bla. C. 502, note 16. (y) See the will of the late Lord Ten valid in part, though obtained and the bequest of a legacy to a terden at Registry of the Prerogative (z) 1 Dow. Rep. New S. 85. CHAP. III. witness of a will of personalty is not, as in the case of a devise I. RIGHTS ΤΟ PERSONALTY. Sixthly, Contracts, (h) or how a right in a chose in action may be acquired. 1. General division into con. of land, invalid. (a) Courts of Equity have a concurrent jurisdiction with the Ecclesiastical Courts with respect to wills and intestacy as regards personalty; (b) and therefore in general, in the construction of wills of personal estate, Courts of Equity follow the rule of the canon, which is founded on the civil law, and by the canon law the word "goods," and equally the word "chattels," taken simply and without qualification, comprise the whole personal estate of every description. (c) If certain personal chattels be specifically bequeathed, and the meaning of the description be doubtful, parol evidence of scientific persons is admissible to explain the meaning. (d) Under the bequest of a leasehold farm, farming utensils not named will not pass, (e) though we have seen that it is otherwise as to growing crops of corn. (f) No action lies for a legacy, unless upon a promise or new consideration. (g) Contracts, we have seen, have been treated as one of the several modes of acquiring or losing the right to personal things. But that is too limited a view of contracts. (i) We cannot in this summary consider all the points relating to contracts and every kind of contract. We shall only notice a few general rules and some of the principal contracts, with occasional suggestions. Contracts are progressively from a higher to an inferior tracts of record, nature, and on that account are entitled to relative preferences specialties, and in the administration of assets. They are of Record, Deeds simple or parol under Seal, or Simple Contracts, whether in writing or verbal. contracts. Those of Record are Recognizances and Judgments acknowledged or recovered before a judge or other official person. (j) Deeds and other instruments under seal stand next in order. These are principally money bonds in a penalty (k) conditioned for the payment of money, or bonds to replace stock, mortgage (a) 25 Geo. 2, c. 6; Simons, 4; 3 Russ. & R. 436. (b) 4 Russ. R. 370; 1 Ves. 334; 1 Cox, (c) 4 Russ. R. 370, where see the effect (f) Ante, 92. (g) 7 B. & Cres. 542; but see 3 East, 120; 1 M. & P. 209, 215. (h) See post, chap. ix., what contracts will be enforced in equity. (i) Ante, 99 n. (p); 2 Bla. C. 400, 442. It is strictly so in a contract of sale, and in all cases of contract one party or the other, by virtue of the engagement, is entitled either to receive money or goods, or have some act performed or omitted; but contracts are by no means limited to the transfer of an interest in a personal thing, and therefore, and also in respect of their general importance, they deserve more particular attention. (j) As to the precaution in docketing, see 3 Simon's R. 301, ante, 104. (k) In equity more than the penalty may be recovered, 3 Simon's R. 129, 340. I. RIGHTS TO bonds, annuity bonds, bail bonds, replevin bonds, or bonds CHAP. III. conditioned for the performance of covenants in another indenture, or for performance of any other act; Mortgage Deeds, PERSONALTY. Annuity Deeds, Leases under Seal, Indentures of Apprenticeship, Charter-parties, Policies under Seal, whether insuring life, or houses, or ships, Articles of Agreement, and Deeds Poll. It is obvious that every contract that can be entered into by simple writing or by parol (excepting, perhaps, bills of exchange and promissory notes) may, if the parties think fit, be under seal, and when so, they have the properties and privileges of specialties; but in that case, in general the formal parts of the instrument differ from the terms of the instrument when not under seal. Lastly, are Written Contracts not under Seal, or mere Verbal Promises. These are of infinite variety. The principal are bills of exchange, promissory notes, checks on bankers, policies of insurance not under seal, insuring ships or lives, (7) memorandums of charter, wagers, awards, contracts relating to the loan of money, or relating to the sale, exchange, or use of goods or land, warranties, guarantees, contracts to marry, to serve, or employ, or perform works, or to deliver or accept goods sold or bought, or to indemnify; contracts, express or implied, of bailees, or agents, factors, wharfingers, farriers, carriers by land or water, and of Attorneys; and in short all the various bargains, express or implied, which are not usually under seal. tion when essen In the case of contracts under seal, no consideration is essen- 2. Consideratial to their validity, unless fraud or illegality can be proved; tial. they are binding upon the party himself, though inoperative against creditors or purchasers, although he received no consideration. Hence, in all cases where the consideration may be doubtful or difficult to state or to prove, or where there is a considerable debt to be guaranteed, it is preferable to have the engagement under seal; and in that case, if the contract itself be clearly expressed, recitals stating the motive for entering into it are in general unnecessary, though, as even a Court of Equity will not enter into the consideration of the motives inducing a party to enter into a contract, unless it be expressed therein or in recitals, (m) it may frequently be advisable, as well in deeds as in other contracts, fully to recite such motives, as explanatory of the object and spirit of the subsequent stipula (1) An insurance on party's own life becomes void if he be executed for a felony, Amicable v. Bolland and others, 2 VOL. I. Dow. R. New S. 1. over-ruling Bolland v. (m) 1 Jac. & W. 429. I CHAP. III. tions. (n) But with respect to contracts not under seal, technically termed parol, (though in writing), they can never be PERSONALTY. enforced unless founded upon sufficient consideration, unless, ΤΟ 3. The peculiar 4. Proposals for a contract, when binding. indeed, in the case of bills of exchange and promissory notes, and then only when in the hands of a bona fide holder for value. (0) In all other cases of parol or simple contracts, the party suing must prove affirmatively that there was adequate consideration, and the defendant is at liberty to show that there was none, or that it was illegal. (p) However valid the expressed consideration may be, it is always competent, in the case of a deed, though not so of a record, for the parties to it to plead and prove that the whole or part of the true consideration was illegal. (q) The principal utility in having the contract for debts of record or under seal, is to bind the heir and devisee of the contracting party at law; and though a modern act (s) now subjects the real estate of a trader, within the meaning of the bankrupt law, to the payment of simple contract debts as well as specialties, that enactment does not extend to persons who are not such traders, and consequently it is in general still advisable to secure a debt or performance of other contract by deed expressly binding the heir, and also to have a judgment docketed, so as to bind the land even in the hands of a purchaser as well as the heir and devisee. Another and very important distinction is, that debts of record, when duly docketed (t) and due on specialty, are to be preferred at law in payment of debts out of personal property by an executor or administrator; so that, upon the whole, in all cases of considerable demands, it is still advisable to have the security of a deed. In case of a bond in a penalty, in a Court of Equity more may be recovered than the amount of the property, though it is otherwise at law. (u) It is a general rule, that to constitute a complete valid contract not under seal, there must be at least two contracting parties, and each should be reciprocally bound at the same (n) 1 Jac. & W. 422; and see 1 Turner & R. 41, 54, as to recitals. (o) Ridout v. Bristow, 1 Tyrw. R. 84; 1 Cromp. & J. 231, S. C., where see lucid remarks of Mr. Baron Bayley. (p) Id. ibid. (q) 1 Saund. 295; 2 Wils. 347; 3 T. R. 424, 538; 9 Bar. & Cres. 462; 10 B. & C. 826. (r) See more fully as to the leading distinctions between records, specialties, and simple contracts, 3 Chit. Commercial Law, 3 to 11; and as to judgments, 3 Younge & Jerv. 101. (s) 1 W. 4, c. 47. time. (v) Therefore, upon a sale by auction, if a party bid for an article a named sum, he is not bound by his offer till the auctioneer on behalf of the vendor has testified his acceptance of the offer by knocking down his hammer, until which instant the bidding may be withdrawn. (a) But that doctrine does not apply to proposals made by letter from one party to another at a distance from each other, to purchase any commodity on certain named terms. In such a case, it has been held that the party is bound by his proposal until either the specified time or a reasonable time for answering it has elapsed, and if within that time the proposal be accepted, it is binding, for otherwise no bargain between parties at a distance from each other could well be effected. (y) But if the proposer, before the other party has forwarded his assent, rescind his offer, by sending a special messenger or otherwise, it seems he might effectually do so. (z) If the party receiving the proposal should not entirely acquiesce, but propose new terms by letter, then he in his turn would be bound by his proposal until a reasonable time had elapsed for receiving an answer; but in the mean time the original proposer would not be bound by his first proposition, and so on until there has been a complete assent on one side to the last proposition of the other. (a) But a mere proposal in writing to become responsible for the debt of another is not binding, unless the creditor immediately communicate his assent thereto to the proposer. (b) But the rule that both parties must reciprocally be bound by the bargain, does not either at law or in equity extend to formal signatures required by the statute against frauds, provided the paper signed by the party sued express the name of the other party. (c) Therefore a party who has not signed may sue the other party who has, (d) and a Court of Equity will also decree a specific performance against a party who has signed; (e) one reason may be, that the statute in one section only requires that the party to be charged shall sign, but another section is in the plural. (f) But still it has been doubted whether in these cases the party who signed is not at liberty to recede, CHAP. III. I. RIGHTS ΤΟ PERSONALTY. |