Part 17 (2/2)

--11. How far a master is answerable for the acts of his hired servant, is not clear. As a general rule, the master is bound for contracts made, and liable for injuries done, by a servant actually engaged in the business of his master, whether the injury proceeds from negligence or from want of skill. But for an injury done by a willful act of the servant, it is considered that the master is not liable. If the servant employs another to do his business, the master is liable for the injury done by the person so employed. But a servant is accountable to his master for a breach of trust, or for negligence in business, or for injuring another person in his master's business.

Chapter L.

Right of Property. How t.i.tle to property is acquired; Wills and Testaments t.i.tle to Property by Descent.

--1. Every citizen of the United States is capable of holding lands, or real estate, and of taking them by devise, descent, or purchase, and of selling and conveying away such estate. Aliens, by common law, have not this power. In many of the states, however, this disability has been removed by statute. On declaring their intention to become citizens, and complying with certain regulations, aliens acquire the right to take and hold real estate to themselves and their heirs. But they may hold and dispose of personal property without any special enactment.

--2. To _devise_ property is to give or bequeath it by will. A _will_ is a written instrument in which a person declares his will concerning the disposal of his property after his death. It is also called _testament_.

This word is from the Latin _testis_, meaning witness. Hence the word has come to be applied to this instrument, which is the witness or proof of a person's will. A person making a will is called _testator_; one who dies without making a will or testament, is called _intestate_.

--3. All persons of full age and sound mind, except married women, may give and bequeath real and personal estate by a last will and testament.

In many of the states, personal estate may be willed at an earlier age.

In a few states, females at eighteen may make a will of real and personal estate. In a few states, personal estate may be willed verbally, if the will is within a specified time reduced to writing, and subscribed by disinterested witnesses. In Ohio such will must be written within ten days after the speaking of the testamentary words. A will of this kind is called a _nuncupative_ will.

--4. In most of the states, laws have been enacted, allowing married women to hold, in their own exclusive right, all the property, real and personal, which they owned at the time of marriage, and which they may acquire after marriage. (Chap. XLVIII, --8.) With the right of possession is also given, it is presumed, the power of disposing of the property by will.

--5. A will devising real estate must be subscribed by at least two, in some slates three, attending witnesses, in whose presence the testator must subscribe the will, or acknowledge that he subscribed it, and declare it to be his last will and testament. If the testator is unable to sign his will, another person may write the testator's name by his direction; but he should sign his own name as witness to the will.

--6. A testator may revoke or alter his will by a later will or writing, executed in the same manner. But the second will, to revoke the former, must contain words expressly revoking it, or directing a different disposal of the property. A will may also be revoked by a sale of the property. And any alteration of the estate or interest of the testator in lands devised, is held to be an implied revocation of the will. Lands purchased after a will has been made, are not conveyed by it. As a general rule, a will is also revoked by the subsequent marriage of the testator and birth of a child, unless the wife and child have been otherwise provided for. The will of an unmarried woman is revoked by her marriage.

--7. By the statutes of some states, a child born after the death of the testator, or born in his lifetime and after the making of the will, inherits a share of the estate, as if the father had died intestate. In some other states, the statute goes further, and gives the same relief to all the children who are not provided for in the will, and who have not had their portion in the parent's lifetime.

--8. A _codicil_ is an addition or a supplement to a will, and must be executed with the same solemnity. It is no revocation of a will, except in the precise degree in which it is inconsistent with it.

--9. After the death of a testator, the will is brought before the court of probate to be proved. (Chap. XX, --5.) When a will has been duly proved and allowed, the court issues letters testamentary to the executor. An _executor_ is a person named in the will of a testator to carry the will into effect. _Letters testamentary_ give him the power to act in settling the estate of the deceased. If he refuses to act, or is not lawfully qualified, the court appoints a person, who, in that case, is called _administrator_; and the court issues _letters of administration_ with the will annexed. Letters of administration are also issued in case of a person dying intestate. They give to the administrator the requisite authority to settle the estate.

--10. Taking property by _descent_, is the receiving of it from an ancestor or other relative dying intestate. If a person dies without making a will, his property falls, or _descends_ to his lawful heirs.

The order or rule of descent is not uniform in this country, being determined, to a great extent, by the laws of the states. In general, however, the real estate of an intestate descends, first to his lineal descendants, that is, persons descending in a direct line, as from parents to children, and from children to grand-children. The lineal descendants most nearly related to the intestate, however distant the relation may be, takes the estate.

--11. If any children of an intestate are dead, and any are living, the inheritance descends to the children living, and to the descendants of the children dead, so that each child living shall receive such share as he would receive if all were living, and the children of those who are dead such share as the parents would receive if living. Thus, suppose an intestate had three sons, one of whom is dead, but has left children. In this case, each of the sons living would share one-third of the property, and the children of the deceased son the remaining third.

--12. But if the children are all dead, and there are grand-children living, the grand-children share equally, though not an equal number are children of each parent. If, for example, an intestate dies leaving no children, but having had two sons, one of whom had left three children, and the other two, the five share equally in the estate. The laws of Rhode Island, New Jersey, North Carolina, South Carolina, Tennessee, Louisiana, and Alabama, unless recently altered, are exceptions to this rule. In these states, and perhaps in a few others, though the children of the intestate are all dead, the grand-children do not share equally, but those of each stock, or family, take the portion which their parent would have taken if living.

--13. The order of descent is so different in the states, especially when there are no lineal descendants of an intestate, that it can be ascertained only by reference to the laws of each state. As a general rule, real estate pa.s.ses, (1.) to the lineal descendants; (2.) to the father; (3.) to the mother; (4.) to the collateral or _side_ relatives, as brothers, sisters, nephews, nieces, &c. But even to this general rule there are exceptions in the laws of some states.

--14. The rule of descent given in the preceding sections, it will be seen, relates to _real_, and not to personal estate. The rule in regard to real estate, and that relating to personal estate, are generally somewhat different in the same state.

Chapter LI.

Deeds and Mortgages.

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