Heir-looms can ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. The parson, indeed, who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it: and, if any one, in taking up a dead body, steals the shroud or other apparel, it will be felony (m); for the property thereof remains in the executor, or whoever was at the charge of the funeral (11). But to return to heir-looms: these, though they be mere away from the chattels, yet cannot be devised away from the heir by will; but such a devise is void (n), even by a tenant in fee-simple. For, though the owner might, during his life, have sold or disposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might mangle or dismember it as he pleased; yet, they being at his death instantly vested in the heir, the devise (which is subsequent, and not to take effect till after his death) shall be postponed to the custom, whereby they have already descended. not be devised heir, by will. (m) 3 Inst. 110; 12 Rep. 113; 1 Hal. P. C. 515. (n) Co. Litt. 185. accustomed to repair the same is ne- Rolle's Rep. 140; S. C. Palm. 48; Spooner v. Brewster, 10 Moore, 494; 3 Bingh. 138.) (11) Mr. Christian observes, that "it has been determined, that stealing dead bodies, though for the improvement of the science of anatomy, is an indictable offence as a misdemeanor; it being a practice contrary to common decency, and shocking to the general sentiments and feelings of mankind. (2 T. R. 733.)" [The difficulty of procuring anatomical subjects, however, led to offences much more atrocious; and the detection of a course of systematical, cold-blooded murders, to supply the demand for dead bodies, caused the act of 2 & 3 Gul. IV. c. 75, to be passed, for regulating schools of anatomy. The statute, (which has been slightly altered by that of 4 & 5 Gul. IV. c. 26,) seems well calculated to insure a supply of subjects for the improvement in science, and to put down the nefarious system above alluded to.-ED.] CHAPTER XXIX. OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. IN the present chapter we shall take into consideration. three other species of title to goods and chattels. sion-which is, in strictness, apaggregate cor plicable only to porations. V. The fifth method, therefore, of gaining a property in V. By succeschattels, either personal or real, is by succession: which is, in strictness of law only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, moveables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies: and, therefore, the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate (a). Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists (b). And thus a lease for years, an *obligation, a jewel, a flock of sheep, [* 431 ] or other chattel interest, will vest in the successors, by succession, as well as in the identical members, to whom it was originally given. tions sole. But, with regard to sole corporations, a considerable As to corporadistinction must be made. For, if such sole corporation be the representative of a number of persons; as the master of (a) 4 Rep. 65. VOL. II. (b) Bro. Abr. t. Estates, 90; Cro. Eliz. 464. T T an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, who represented the whole convent; or the dean of some ancient cathedral, who stands in the place of, and represents in his corporate capacity, the chapter; such sole corporations as these have, in this respect, the same powers as corporations aggregate have, to take personal property or chattels in succession. And, therefore, a bond to such a master, abbot, or dean, and his successors, is good in law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representative (c). Whereas, in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession (1): and, therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successors shall have it (d). For, the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John bishop of Oxford and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such his successors. The reason of this is obvious: for, besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that, if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from [ *432 ] the *death of the present owner until the successor be appointed and this is contrary to the nature of a chattel interest, which can never be in abeyance (2) or without an owner (e); but a man's right therein, when once suspended, is gone for ever. This is not the case in corporations aggregate, where the right is never in suspense; nor in the (c) Dyer, 48; Cro. Eliz. 464. (1) See Vol. I. p. 477. (d) Co. Litt. 46. (e) Brownl. 132. the note annexed thereto. other sole corporations before mentioned, who are rather to be considered as heads of an aggregate body, than subsisting merely in their own right: the chattel interest, therefore, in such a case, is really and substantially vested in the hospital, convent, chapter, or other aggregate body; though the head is the visible person in whose name every act is carried on, and in whom every interest is therefore said (in point of form) to vest. But the general rule, with regard to corporations merely sole, is this, that no chattel can go to or be acquired by them in right of succession (f). Yet, to this rule there are two exceptions. One in the Exceptions. case of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors (g). The other exception is, where, by a particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. And this custom, being against the general tenor of the common law, must be strictly interpreted, and not extended to any other chattel interests than such immemorial usage will strictly warrant. Thus, the chamberlain of London, who is a corporation sole, may, by the custom of London, take bonds and recognizances to himself and his successors, for the benefit of the orphan's fund (h) but it will not follow from thence, that he has a capacity to take a lease for years to himself and his successors for the same purpose; for the custom extends not to that: nor that he may take a bond to himself and his successors, for any other purpose than the benefit of the orphan's fund; for that also is not warranted by the custom. Wherefore, upon the whole, we may close this head with laying down this general rule; that such right of succession to chattels is universally inherent by the common law in all [ * 433 ] aggregate corporations, in the king, and in such single corporations as represent a number of persons; and may, by special custom, belong to certain other sole corporations for some particular purposes: although, generally, in sole corporations no such right can exist. VI. A sixth method of acquiring property in goods and VI. By marriage. chattels is by marriage, whereby those chattels, which be longed formerly to the wife, are by act of law vested in the (f) Co. Litt. 46. (g) Ibid. 90. (h) 4 Rep. 65; Cro. Eliz. 682. Chattels personal vest in the husband absolutely; husband, with the same degree of property, and with the same powers, as the wife, when sole, had over them (3). This depends entirely on the notion of an unity of person between the husband and wife, it being held that they are one person in law (i), so that the very being and existence of (i) See book I. c. 15, pp. 442, 445. (3) The interest which a husband has in the personal estate and real chattels which belonged to his wife before marriage, is founded upon that good faith which ought to be inviolably preserved in so solemn a contract as that of marriage. The burthens to which a husband is liable, are a consideration for his marital rights; upon which rights, therefore, a fraud is committed if the consideration is withheld from him. A conveyance by a woman at any time before her marriage, is prima facie good; but, if a woman, during the course of a treaty of marriage with her, make, without notice to the intended husband, a conveyance of any part of her property, a court of equity, it has been held, will set aside that conveyance, as affected with fraud. (Countess of Strathmore v. Bowes, 1 Ves. jun. 28; Draper's case, 2 Freem. 29, 2nd edit.) Some of the dicta, however, in the case just cited from Vesey's Rep. seem to intimate, that a conveyance of her own property in trust for herself, by a woman before marriage, though without her intended husband's privity, may, under circumstances, be sustained in equity; and the same doctrine was held in Slocombe v. Glubb, (2 Br. 551,) as it had previously been in Blithe's case. (2 Freem. 91.) But then, the circumstances must be special; it appears to be a general rule, that after an intimacy with a view to marriage has commenced, a settlement made by the woman, of any part of her property in exclusion of the marital rights of her husband, is fraudulent and void, if concealed from him. The passages of the judgment in Strathmore v. Bowes, from which it might be inferred, that mere concealment would not be sufficient to invalidate such an instrument, where the husband was not positively misled by some express affirmation on the subject ;- these passages, it has been judicially declared, must be understood only as having reference to the particular circumstances of the case in which the dicta were pronounced. (Goddard v. Snow, 1 Russ. 494.) In the later case, however, of St. George v. Wake, (1Mylne & Keen, 620,) the judgment in which case refers to and analyses all the leading previous decisions, it is said that, it has often indeed been laid down as a principle, that a voluntary conveyance by a woman, while her marriage is in contemplation, is avoidable by the husband from whom it was concealed; but, this principle has been very rarely acted upon to the extent of avoiding, by judicial decision, such conveyance, as a fraud upon the husband's rights. Marriage is an absolute gift to the husband of all the goods, personal chattels and estate, which the wife was actually and beneficially possessed of at that time, and of such other goods and personal chattels as come to her, in her own right, during the marriage. (Co. Litt. 300 a, 351 a & b.) But this interest the husband may waive by contract; (Hunt v. Pitt, 2 Freem. 79;) and may empower his wife to make a testamentary disposition of her personal estate during her coverture. (See ante, p. 375, note, and post, p. 498.) |