Professional Documents
Culture Documents
MUST-KNOW WORDS IN PROPERTY
AND THEIR MEANINGS
In partial fulfillment of
the requirements of
Property
By
Second Year, Block E
TABLE OF CONTENTS
A
ABANDONMENT 6
ABATEMENT 6
ABUT 6
ACCESSION 7
ACCESSORY 7
ACCRUE 8
ADDITION 8
ADEMPTION 8
ADHESION 8
ADJUNCT 9
ALIENATE 9
ALLUVION 9
APPREHENSION 9
APPURTENANCE 10
ASSESSMENT 10
ATTACHMENT 10
ATTORN 11
AVULSION 11
B
BAD FAITH 12
BEQUEST 12
C
CESSION 12
CHARTER 12
CHATTEL 12
CLOUD 13
CODICIL 13
COLLATION 13
CORPOREAL 13
D
DE FACTO 14
DEMISE 15
DERELICT 15
DETAINER 16
DEVISE 16
DISCHARGE 17
DISENCUMBER 18
DISREPAIR 18
DISSEISIN 18
1
DOMICILE 19
DONATION 20
DOWER 20
E
EASEMENT 21
EDIFICE 21
EGRESS 22
EMBARGO 22
EMBELLISH 22
ENCROACH 22
ENCUMBRANCE 22
ENDOWMENT 23
EROSION 23
ESCHEAT 23
ESCROW 24
EVULSION 24
EXECUTOR 24
F
FEOFFMENT 26
FIXTURE 26
FREEHOLD 27
G
GIFT 27
GRANT 28
H
HABITANT 28
HEIR 28
HEREDITAMENT 29
HOLOGRAPHIC 29
HOMESTEAD 29
HYPOTHECATION 30
I
IMPEDIMENT/S 30
IMPLEMENT/S 30
IMPOUND 31
INCORPOREAL 31
INCREMENT 31
INHERITANCE 31
2
J
JETTISON 32
JURY 32
K
KINDRED 32
KINSHIP 32
L
LACHES 33
LARGESS 33
LEASEHOLD 33
LEVY 34
LIEN 34
LITTORAL 34
M
MALICE 35
MERCANTILE 35
MOIETY 35
MORTGAGE 35
N
NEXT OF KIN 37
NON COMPOS MENTIS 37
NUISANCE 37
NUNCUPATIVE 38
O
OCCUPANCY 39
OCCUPANT 39
OCCUPATION 40
OCCUPY 40
OWNERSHIP 40
P
PAROL 41
PARTITION 41
PLAINTIFF 42
PLEDGE 42
POSSESSION 42
PREEMPTION 43
PRESCRIPTION 43
PROBATE 44
3
PROPERTY 45
PUNITIVE 45
Q
QUAGMIRE 46
QUOTA 46
R
REALTY 46
REDEMPTION 46
REMISSION 47
RENUNCIATION 47
REPLEVIN 47
REPUDIATION 47
REVERSION 48
S
SALVAGE 49
SEISIN 50
SERVITUDE 50
SPOILAGE 52
SUBDIVISION 52
T
TENANCY 52
TESTAMENT 53
TESTATE 54
TORT 54
TRESPASS 55
U
UMBRAGE 56
UNDERWRITE 56
USURP 56
V
VACANT 57
VOIDABLE 57
W
WARRANTY 57
WILL 59
WRONGDOER 60
4
Y
YIELD 61
Z
ZEALOUS 61
5
A
The surrender, relinquishment, disclaimer, or cession of
property or of rights.1
The giving up of a thing absolutely, without reference to any
particular person or purpose, such as throwing a jewel into
1 ABANDONMENT the highway, leaving a thing to itself, as a vessel at sea,
vacating property with the intention of not returning, so that
it may be appropriated by the next corner.2
Intention to forsake or relinquish the thing is an essential
element, to be proved by visible acts3.4
To reach, to touch.
3 ABUT
(In old law) The ends were said to abut, the sides to adjoin.7
1
Stephens v. Mansfield, 11 Cal. 363 ( land) ; Munsey v. Marnet Oil & Gas Co. (Tex.Civ.App.) 199 S.W. 686, 689 (oil
lease); Shepard v. Alden, 201 N.W. 537, 539, 161 Minn. 135, 39 A.L.R. 1094 (bowling alleys); Union Grain &
Elevator Co. v. McCammon Ditch Co., 240 P. 443, 445, 41 Idaho 216 ( water rights).
2
See 2 Bl. Comm. 9, 10; Judson v. Malloy, 40 Cal. 299, 310.
3
Sikes v. State, Tex.Cr.App., 28 S.W. 688; Jordan v. State, 107 Tex.Cr.R. 414, 296 S.W. 585, 586 (auto parts);
Kunst v. Mabie, 72 W.Va. 202, 77 S.E. 987, 990 ( uncut timber); Dow v. Worley, 126 Okl. 175, 256 P. 56, 60 (oil
and gas lease); Duryea v. Elkhorn Coal & Coke Corporation, 123 Me. 482, 124 A. 206, 208.
4
Abandonment in law depends upon concurrence of intention to abandon and some overt act or failure to act
which carries implication that owner neither claims nor retains any interest (See Stinnett v. Kinslow, 238 Ky. 812,
38 S.W.2d 920, 922).
5
See The Vestris, D.C.N.Y., 53 F.2d 847, 852.
6
Brown v. Burdick, 25 Ohio St. 268.
7
See Cro. Jac. 184; Lawrence v. Killam, 11 Kan. 499, 511; Springfield v. Green, 120 Ill. 269, 11 N.E. 261.
6
To touch at the end; be contiguous; join at a border or
boundary; terminate; to end at; to border on; to reach or
touch with an end.8
The term "abutting" implies a closer proximity than the
term "adjacent."
(Abutments) The walls of a bridge adjoining the land which
support the end of the roadway and sustain the arches. The
ends of a bridge, or those parts of it which touch the land.9
(Abbutal) The buttings or boundings of lands, showing to
what other lands, highways, or places they belong or are
abutting.
(Abbuting owner, concept) A n owner of land which abuts or
adjoins. The term usually implies that the relative parts
actually adjoin, but is sometimes loosely used without
implying more than close proximity.
8
Hensler v. City of Anacortes, 140 Wash. 184, 248 P. 406, 407.
9
Board of Chosen Freeholders of Sussex County v. Strader, 18 N.J.Law, 108, 35 Am.Dec. 530.
10
See 2 Kent, 360; 2 Bl.Comm. 404; Franklin Service Stations v. Sterling Motor Truck Co. of N. E., 50 R. I. 336,
147 A. 754, 755.
11
Twin City Motor Co. v. Rouzer Motor Co., 197 N.C. 371, 148 S.E. 461, 463. In Blackwood Tire & Vulcanizing
Co. v. Auto Storage Co., 133 Tenn. 515, 182 S. W. 576, L.R.A.1916E, 254, Ann.Cas.1917C, 1168.
7
horse, the frame of a picture, the keys of a house.
Adjunct or accompaniment.12
12
Louis Werner Saw Mill Co. v. White, 205 La. 242, 17 So.2d 264, 270.
13
Hartsfield Co. v. Shoaf, 184 Ga. 378, 191 S.E. 693, 695.
14
H. Liebes & Co. v. Commissioner of Internal Revenue, C.C.A.9, 90 F.2d 932, 936.
15
Id.
16
Mack v. Eyssell, 332 Mo. 671, 59 S.W.2d 1049; Washington Loan & Trust Co. v. Hammond, 51 App.D.C. 260,
278 F. 569, 571.
17
Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65, 66.
18
See Judge v. Bergman, 258 Ill. 246, 101 N.E. 574, 576.
19
Tagnon's Adm'x v. Tagnon, 253 Ky. 374, 69 S.W.2d 714.
20
Hurley v. Schuler, 296 Ky. 118, 176 S.W.2d 275, 276.
21
Burnham v. Comfort, 108 N.Y. 535, 15 N.E. 710.
22
See Opp.Int.L. § 533.
8
party only to such parts as are specifically agreed to, and by
accession it accepts and is bound by the whole treaty.
That increase of the earth on a shore or bank of a river,
or to the shore of the sea, by the force of the water, as
by a current or by waves, which is so gradual that no
one can judge how much is added at each moment of
time.27
12 ALLUVION
"Accretion" denotes the act. However, the terms are
frequently used synonymously.28
Avulsion is sudden and perceptible.29
(In civil law) A physical or corporal action the part of one
who intends to acquire possession of a thing, by which
he brings himself into such a relation to the thing that he
may subject it to his exclusive control; or by which he
13 APPREHENSION
obtains the physical ability to exercise his power over
the thing whenever he pleases.
One of the requisites to the acquisition of judicial
23
New York Trust Co. v. Carpenter, C.C.A.Ohio, 250 F. 668, 672.
24
See Co.Litt. 118b.
25
See Masters v. Insurance Co., 11 Barb., N.Y., 630; Nichols & Shepard Co. v. Dunnington, 118 Okl. 231, 247 P.
353, 355.
26
See Delfelder v. Poston, 42 Wyo. 176, 293 P. 354, 361.
27
See Inst. 1, 2, t. 1, § 20. Ang. Water Courses, 53. Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 Sup.Ct.
518, 33 L.Ed. 872. Willett v. Miller, 176 Okl. 278, 55 P.2d 90, 92.
28
Katz v. Patterson, 135 Or. 449, 296 P. 54, 55.
29
St. Clair County v. Lovingston, 23 Wall. 46, 23 L.Ed. 59.
9
possession, and by which, when accompanied by
intention, possession is acquired.30
30
See Mackeld.Rom.Law, §§ 248, 249, 250.
31
Cohen v. Whitcomb, 142 Minn. 20, 170 N.W. 851, 852; Alwes v. Richheimer, 185 Ark. 535, 47 S.W.2d 1084,
1085; Joplin Waterworks Co. v. Jasper County, 327 Mo. 964, 38 S.W.2d 1068, 1076
32
Szilagy v. Taylor, 63 Ohio App. 105, 25 N.E.2d 360, 361.
33
First Nat. Bank & Trust Co. of Vermillion v. Kirby, 62 S.D. 489, 253 N.W. 616; Lipscomb v. Rankin,
Tex.Civ.App., 139 S.W.2d 367, 369
34
U. S. Capsule Co. v. Isaacs, 23 Ind.App. 533, 55 N.E. 832.
10
To turn over; to transfer to another money or goods; to
assign to some particular use or service.35
To consent to the transfer of a rent or reversion. To agree to
17 ATTORN
become tenant to one as owner or landlord of an estate
previously held of another, or to agree to recognize a new
owner of a property or estate and promise payment of rent
to him.36
35
Hemminger v. Klaprath, 15 N.J. Misc. 163, 189 A. 363, 364. T
36
Hurley v. Stevens, 220 Mo.App. 1057, 279 S.W. 720, 722.
37
See 2 Washb.Real Prop. 452; Wharton. Rees v. McDaniel, 115 Mo. 145, 21 S.W. 913; Schwartzstein v. B. B.
Bathing Park, 197 N.Y.S. 490, 492, 203 App. Div. 700; Conkey v. Knudsen, 143 Neb. 5, 8 N.W. 2d 538, 542.
38
Harper v. Holston, 119 Wash. 436, 205 P. 1062, 1064. Where runn
39
State of Arkansas v. State of Tennessee, 246 U.S. 158, 38 S.Ct. 301, 304, 62 L.Ed. 638, L.R.A.1918D, 258;
Stull v. U. S., C.C.A.Neb., 61 F.2d 826, 830
40
See 60 Okl.St.Ann. §§ 335, 336. Goins v. Merryman, 183 Old. 155, 80 P.2d 268.
11
B
The opposite of “good faith,” generally implying or
involving actual or constructive fraud, or a design to
mislead or deceive another, or a neglect or refusal to
19 BAD FAITH
fulfill some duty or some contractual obligation, not
prompted by an honest mistake as to one’s rights or duties,
but by some interested or sinister motive.41
41
State v. Griffin, 100 S.C. 331, 84 S.E. 876, 877; Penn Mut. L. Ins. Co. v. Mechanics' Savings Bank & Trust Co.,
C.C.A.Tenn., 73 F. 653, 19 C.C.A. 316, 38 L.R.A. 33, 70; Spiegel v. Beacon Participations, 297 Mass. 398, 8
N.E.2d 895, 907.
42
In re Fratt's Estate, 60 Mont. 526, 199 P. 711, 714; In re Wood's Estate, 6 N.W.2d 846, 848, 232 Iowa 1004;
43
Grand Island Trust Co. v. Snell, 249 N.W. 293, 125 Neb. 148.
44
"Bequest" and "devise" are often used synonymously.
45
First Presbyterian Church of Mt. Vernon v. Dennis, 178 Iowa, 1352, 161 N.W. 183, 185, L.R.A.1917C, 1005.
46
See Cowell; Spelman; Co.Litt. 6; 1 Co. 1; F.Moore 687.
47
People v. Holbrook, 13 Johns., N.Y., 94; U. S. v. Sischo, C.C.A.Wash., 270 F. 958, 961.
12
A thing personal and movable.48
Things which in law are deemed personal property, they are
divisible into chattels real and chattels personal.
A supplement or an addition to a will'; it may explain, modify,
add to, subtract from, qualify, alter, restrain or revoke
provisions in will.50
25 CODICIL
Usually it does not supersede or totally revoke the will; but
is part of the will and may confirm, reexecute, revive, or
republish the will.
It is the bringing into the estate of an intestate an
estimate of the value of advancements made by the
intestate to his or her children in order that the whole
may be divided in accordance with the statute of
descents.51
(In civil law) The collation of goods is the supposed or real
return to the mass of the succession which an heir makes of
property which he received in advance of his share or
otherwise, in order that such property may be divided
26 COLLATION
together with the other effects of the succession.52
The fundamental basis of doctrine is legal presumption that
ancestor intended absolute equality among his descendants
in final distribution of his property, that donation by him
during his lifetime to any one of them was merely
advancement d'hoirie or advance on donee's hereditary
share to establish him in life or for some other useful
purpose, and that ancestor intended to reestablish equality
among his descendants in final partition of his estate.53
27 CORPOREAL A term descriptive of such things as have an objective,
48
Castle v. Castle, C.C.A.Haw., 267 F. 521, 522.
49
Parker v. Vallerand, 136 Me. 519, 8 A.2d 594; Anderson v. Guenther, 144 Or. 446, 25 P.2d 146.
50
In re Phelps' Will, 232 N.Y.S. 418, 421, 133 Misc. 450; Butler University v. Danner, 114 Ind.App. 236, 50 N.E.2d
928, 932; In re Cazaurang's Estate, 42 Cal.App.2d 796, 110 P.2d 138; Blackford v. Anderson, 226 Iowa 1138,
286 N.W. 735, 743; Adams v. Foley, 360 Ohio App. 295, 173 N.E. 197, 198.
51
In re Howlett's Estate, 275 Mich. 596, 267 N.W. 743, 744
52
See Civ.Code La. art. 1227; Miller v. Miller, 105 La. 257, 29 So. 802; Succession of Thompson, 9 La.Ann. 96.
53
Le Blanc v. Volker, La.App., 198 So. 398, 401.
13
material existence; perceptible by the senses of sight
and touch; possessing a real body. Opposed to
incorporeal and spiritual.54
There is a distinction between "corporeal" and "corporal."
The former term means "possessing a body," that is,
tangible, physical, material; the latter means "relating to or
affecting a body," that is, bodily, external. Corporeal denotes
the nature or physical existence of a body; corporal denotes
its exterior or the co-ordination of it with some other body.
Hence we speak of "corporeal hereditaments," but of
"corporal punishment," "corporal touch," "corporal oath,"
etc.
(Corporeal Property, concept) S uch as affects the senses,
and may be seen and handled by the body, as opposed
to incorporeal property, which cannot be seen or
handled, and exists only in contemplation. Thus a house
is corporeal, but the annual rent payable for its occupation is
incorporeal. C orporeal property is, if movable, callable of
manual transfer; if immovable, possession of it may be
delivered up. But incorporeal property cannot be so
transferred, but some other means must be adopted for its
transfer, of which the most usual is an instrument in writing.
D
In fact, in deed, actually. This phrase is used to
characterize an officer, a government, a past action, or a
state of affairs which must be accepted for all practical
purposes, but is illegal or illegitimate. In this sense it is
the contrary of de jure, which means rightful, legitimate, just,
or constitutional. Thus, an officer, king, or government de
facto is one who is in actual possession of the office or
supreme power, but by usurpation, or without lawful title;
28 DE FACTO
while an officer, king, or governor de jure is one who has just
claim and rightful title to the office or power, but has never
had plenary possession of it, or is not in actual possession.55
But the term is also frequently used independently of any
distinction from de jure; thus a blockade de facto is a
blockade which is actually maintained, as distinguished from
a mere paper blockade.56
54
Sullivan v. Richardson, 33 Fla. 1, 14 So. 692; Bourland v. State, 133 Tex.Cr.R. 544, 112 S.W.2d 720, 721.
55
See 4 Bl.Comm. 77, 78. MacLeod v. United States, 229 U.S. 416, 33 S.Ct. 955, 57 L.Ed. 1260; Wheatley v.
Consolidated Lumber Co., 167 Cal. 441, 139 P. 1057, 1059.
56
See 1 Kent, 44.
14
(As a verb) To convey or create an estate for years or life;
to lease. The usual and operative word in leases.57
(As a noun) A conveyance of an estate to another for life, for
years, or at will; most commonly for years; a lease.58
Originally a posthumous grant; commonly a lease or
conveyance for a term of years; sometimes applied to any
conveyance, in fee, for life, or for years.
"Demise" is synonymous with "lease" or "let." The use of the
term in a lease imports a covenant for quiet enjoyment59 and
implies a covenant by lessor of good right and title to make
the lease.60
29 DEMISE
(Demise and redemise, concept) Mutual leases made from
one party to another on each side, of the same land, or
something out of it. As when A. grants a lease to B. at a
nominal rent (as of a peppercorn), and B redemises the
same property to A. for a shorter time at a real, substantial
rent.61
(Several demises, concept) As in English practice, in the
action of ejectment, it was formerly customary, in case there
were any doubt as to the legal estate being in the plaintiff, to
insert in the declaration several demises from as many
different persons; but this was rendered unnecessary by the
provisions of the common-law procedure acts.
57
See 2 Bl. Comm. 317; 1 Steph. Comm. 476; Co. Litt. 45a; Carr v. King, 24 Cal.App. 713, 142 P. 131, 133.
58
See 1 Steph. Comm. 475. Priddy v. Green, Tex.Civ.App., 220 S.W. 243, 248.
59
Evans v. Williams, 291 Ky. 484, 165 S.W.2d 52, 55; Sixty-Third & Halsted Realty Co. v. Chicago City Bank &
Trust Co., 299 III.App. 297, 20 N.E.2d 162, 167.
60
See Evans v. Williams, 291 Ky. 484, 165 S.W.2d 52, 55.
61
See Jacob; Whishaw.
62
See 2 Bl.Comm. 9; 2 Reeve, Eng.Law, 9; Thompson v. One Anchor and Two Anchor Chains,, D.C.Wis., 221 F.
770, 772.
63
See 2 Rolle, Abr. 170; 2 Bl, Comm. 262; 1 Crabb, Real Prop. 109.
15
or return by the master or crew, whether resulting from
wreck, accident, necessity, or voluntary abandonment.64
(Dereliction, concept) The gaining of land from the water, in
consequence of the sea shrinking back below the usual
water mark; the opposite of alluvion.65
The act (or the juridical fact) - of withholding from a person
lawfully entitled the possession of land or goods, or the
restraint of a man's personal liberty against his will;
detention.
The wrongful keeping of a person's goods is called an
"unlawful detainer" although the original taking may have
been lawful. As, if one distrains another's cattle, damage
feasant, and before they are impounded the owner tenders
sufficient amends; now, though the original taking was
31 DETAINER lawful, the subsequent detention of them after tender of
amends is not lawful, and the owner has an action of
replevin to recover them, in which he will recover damages
for the detention, and not for the caption, because the
original taking was lawful.66
(In Practice) A writ or instrument, issued or made by a
competent officer, authorizing the keeper of a prison to keep
in his custody a person therein named. A detainer may be
lodged against one within the walls of a prison, on what
account soever he is there.67
64
U. S. v. Stone, C.C.Tenn., 8 F. 232-243; Cromwell v. The Island City, 1 Black Black's Law Dictionary Revised
4th Ed.-34 529 DERELICT 121, 17 L.Ed. 70; The Hyderabad, D.C.Wis., 11 F. 749-754; The No. 105, Belcher Oil
Co. v. Griffin, C.C.A.Fla., 97 F.2d 425, 426; Mengel Box Co. v. Joest, 127 Miss. 461, 90 So. 161, 163.
65
See Dyer, 326b; 2 Bl.Comm. 262; 1 Steph.Comm. 419; Linthicum v. Coan, 64 Md. 439, 2 A. 826, 54 Am.Rep.
775.
66
See 3 Steph.Comm. 548.
67
See Com.Dig. "Process," E, (3 B.) This writ was superseded by 1 & 2 Vict. c. 110, §§ 1, 2.
68
Scholle v. Scholle, 113 N.Y. 261, 21 N.E. 84; Murchison v. Wallace, 156 Va, 728, 159 S.E. 106, 108.
69
See 1 Jarm.Wills, c. 26.
16
particular enumeration or description of them; as, a devise of
"all my lands" or "all my other lands." In a more restricted
sense, a general devise is one which grants a parcel of land
without the addition of any words to show how great an
estate is meant to be given, or without words indicating
either a grant in perpetuity or a grant for a limited term; in
this case it is construed as granting a life estate.70 Specific
devises are devises of lands particularly specified in the
terms of the devise, as opposed to general and residuary
devises of land, in which the local or other particular
descriptions are not expressed. At common law, all devises
of land were deemed to be "specific" whether the land was
identified in the devise or passed under the residuary clause.
The term "devise" is properly restricted to real property;
testamentary dispositions of personal property being
properly called "bequests" or "legacies."71
To contrive; plan; scheme; invent; prepare.72
70
Hitch v. Patten, 8 Houst. (Del.) 334, 16 A. 558, 2 L.R.A. 724.
71
Borgner v. Brown, 133 Ind. 391, 33 N.E. 92
72
Stockton v. United States, C.C.A.I11., 205 F. 462, 464, 46 L.R.A.,N.S., 936.
73
Clark v. Sperry, 125 W.Va. 718, 25 S.E.2d 870, 872; La Velle v. Trophagen, 236 N.Y.S. 214, 216, 134 Misc. 604;
Glaser v. Haskin, 140 Or. 392, 13 P.2d 1071, 1074; The Losmar, D.C.Md., 20 F.Supp. 887, 891; Mazur v. Stein,
314 Ill. App. 529, 41 N.E.2d 979, 981; Bourne v. Board of Education of City of Roswell, 46 N.M. 310, 128 P.2d
733, 735.
74
Rivers v. Blom, 163 Mo. 442, 63 S.W. 812.
17
by any act short of that, lawful in itself, which the creditor
accepts as sufficient.75 To discharge a person is to liberate
him from the binding force of an obligation, debt, or claim.
There is a distinction between a "debt discharged" and a
"debt paid." When discharged the debt still exists though
divested of its character as a legal obligation during the
operation of the discharge. Something of the original vitality
of the debt continues to exist which may be transferred,
even though the transferee takes it subject to its disability
incident to the discharge. The fact that it carries something
which may be a consideration for a new promise to pay, so
as to make an otherwise worthless promise a legal
obligation, makes it the subject of transfer by assignment.76
Discharge by operation of law is where the discharge takes
place, whether it was intended by the parties or not; thus, if
a creditor appoints his debtor his executor, the debt is
discharged by operation of law, because the executor
cannot have an action against himself.77
(In civil practice) To discharge a rule, an order, an injunction,
a certificate, process of execution, or in general any
proceeding in a court, is to cancel or annul it, or to revoke it,
or to refuse to confirm its original provisional force.78
To discharge a jury is to relieve them from any further
consideration of a cause. This is done when the continuance
of the trial is, by any cause, rendered impossible; also when
the jury, after deliberation, cannot agree on a verdict.
75
Blackwood v. Brown, 29 Mich. 484; Rangely v. Spring; 28 Me. 151.
76
Stanek v. White, 172 Minn. 390, 215 N.W. 784.
77
See Co. Litt. 264b, note 1; Williams, Ex'rs, 1216; Chit.Cont. 714.
78
Nichols v. Chittenden, 14 Colo. App. 49, 59 P. 954.
79
Wyoming Coal Mining Co. v. Stanko, 22 Wyo. 110, 138 P. 182, 183.
80
See 3 Washb. Real Prop. 125; Sweeney v. Dahl, 140 Me. 133, 34 A.2d 673, 675, 151 A.L.R. 356.
18
where the possession was vacant, but an attack upon him
who is in actual possession, and turning him out. It is an
ouster from a freehold in deed, as abatement and intrusion
are ousters in law.81
When one man invades the possession of another, and by
force or surprise turns him out of the occupation of his
lands, this is termed a "disseisin," being a deprivation of that
actual seisin or corporal possession of the freehold which
the tenant before enjoyed. In other words, a disseisin is said
. to be when one enters intending to usurp the possession,
and to oust another from the freehold. To constitute an entry
a disseisin, there must be an ouster of the freehold, either by
taking the profits or by claiming the inheritance.
According to the modern authorities, there seems to be no
legal difference between the words "seisin" and
"possession," although there is a difference between the
words "disseisin" and "dispossession ;" the former meaning
an estate gained by wrong and injury, whereas the latter may
be by right or by wrong ; the former denoting an ouster of
the disseisee, or some act equivalent to it, whereas by the
latter no such act is implied.82
Equitable disseisin is where a person is wrongfully deprived
of the equitable seisin of land, e.g., of the rents and profits.83
Disseisin by election is where a person alleges or admits
himself to be disseised when he has not really been so.
81
See 3 Steph.Comm. 386.
82
Slater v. Rawson, 6 Metc. (Mass.) 439.
83
See 2 Meriv. 171; 2 Jac. & W. 166.
84
Kurilla v. Roth, 132 N.J.L. 213, 38 A.2d 862, 864; In re Stabile, 348 Pa. 587, 36 A.2d 451, 458; Shreveport Long
Leaf Lumber Co. v. Wilson, D.C.La., 38 F.Supp. 629, 631, 632
85
In re Garneau, 127 F. 677, 62 C.C.A. 403; In re Gilbert's Estate, 15 A.2d 111, 117, 118, 18 N.J. Misc. 540; In re
Schultz' Estate, 316 Ill.App. 540, 45 N.E.2d 577, 582. Davis v. Davis, Ohio App., 57 N.E.2d 703, 704.
86
In re Schultz' Estate, 316 Ill.App. 45 N.E.2d 577, 582, 316 Ill.App. 540.
19
It is his legal residence, as distinguished from his temporary
place of abode; or his home, as distinguished from a place
to which business or pleasure may temporarily call him.87
"Domicile" and "residence," however, are frequently
distinguished, in that domicile is the home, the fixed place of
habitation; while residence is a transient place of dwelling.88
A gift.89
As sometimes used, however, the term does not necessarily
mean an absolute gift without any condition or consideration
whatever.90
38 DONATION
A donation of real estate is certainly not a mortgage or
privilege, but is a transfer of property of a peculiar kind,
subject to revocation, sometimes without cause, and always
subject to reduction at the suit of the forced heirs of the
donor.91
The provision which the law makes for a widow out of
the lands or tenements of her husband, for her support
and the nurture of her children.92
A species of life-estate which a woman is, by law, entitled to
claim on the death of her husband, in the lands and
tenements of which he was seised in fee during the
marriage, and which her issue, if any, might by possibility
have inherited.93
39 DOWER
"Dower" is the life estate to which every married woman is
entitled on death of her husband, intestate, or, in case she
dissents from his will, one-third in value of all lands of which
husband was beneficially seized in law or in fact. at any time
during coverture.94
The term, both technically and in popular acceptation, has
reference to real estate exclusively.95
87
Towson v. Towson, 126 Va. 640, 102 S.E. 48, 52.
88
Fisher v. Jordan, C.C.A.Tex., 116 F.2d 183, 186; Minick v. Minick, 111 Fla. 469, 149 So. 483, 488; Hartzler v.
Radeka, 265 Mich. 451, 251 N.W. 554.
89
Mills v. Stewart, 76 Mont. 429, 247 P. 332, 334, 47 A.L.R. 424; Darnell v. Equity Life Ins. Co.'s Receiver, 179
Ky. 465, 200 S. W. 967, 972; Fairfield v. Huntington, 23 Ariz. 528, 205 P. 814, 815, 22 A.L.R. 1438. United
Brotherhood of Carpenters and Joiners of America v. Rogers, 165 Okl. 131, 25 P.2d 57. See Donatio
90
International & G. N. Ry. Co. v. Anderson County, Tex.Civ.App., 174 S.W. 305, 315.
91
Bank of Delphi v. Lea, 139 La. 730, 72 So. 187, 188.
92
See Co. Litt. 30a; 2 Bl.Comm. 130; In re Miller's Estate, 44 N.M. 214, 100 P.2d 908, 911.
93
See 1 Steph.Comm. 249; 2 Bl.Comm. 129; Cruise, Dig. tit. 6; 2 Crabb, Real Prop. p. 124, § 1117; 4 Kent,
Comm. 35.
94
McGehee v. McGehee, 189 N. C. 558, 127 S.E. 684, 687. McLawhorn v. Smith, 211 N.C. 513, 191 S.E. 35, 38,
110 A.L.R. 980.
95
Shackelford v. Shackelford, 181 Va. 869, 27 S.E.2d 354, 359.
20
“Dower," in modern use, is distinguished from "dowry." The
former is a provision for a widow on her husband's death ;
the latter is a bride's portion on her marriage.96
E
A right in the owner of one parcel of land, by reason of
such ownership, to use the land of another for a special
purpose not inconsistent with a general property in the
owner.97
A privilege which the owner of one adjacent tenement hath
of another, existing in respect of their several tenements, by
which that owner against whose tenement the privilege
exists is obliged to suffer or not to do something on or in
regard to his own land for the advantage of him in whose
land the privilege exists.
A privilege, service, or convenience which one neighbor has
40 EASEMENT of another, by prescription, grant, or necessary implication,
and without profit; as a way over his land, a gate-way,
water-course, and the like.98
A liberty, privilege, or advantage without profit, which the
owner of one parcel of land may have in the lands of another.
99
The land against which the easement or privilege exists
is called the "servient" tenement, and the estate to
which it is annexed the "dominant" tenement; and their
owners are called respectively the "servient" and
"dominant" owner. These terms are taken from the civil
law.100
A building.
41 EDIFICE A structure an architectural fabric chiefly applied to elegant
houses and other large buildings, as a palace a church a
statehouse.
96
Wendler v. Lambeth, 163 Mo. 428, 63 S.W. 684.
97
Hollomon v. Board of Education of Stewart County, 168 Ga. 359, 147 S.E. 882, 884; Frye v. Sebbitt, 145 Neb.
600, 17 N.W.2d 617, 621.
98
See Kitch. 105; 3 Cruise, Dig. 484. And see Harrison v. Boring, 44 Tex. 267.
99
Magnolia Petroleum Co. v. Caswell, Tex., 1 S.W.2d 597, 600; Hasselbring v. Koepke, 263 Mich. 466, 248 N.W.
869, 873, 93 A. L.R. 1170.
100
Saratoga State Waters Corporation v. Pratt, 227 N.Y. 429, 125 N.E. 834, 838; Joachim v. Belfus, 108 N.J.Eq.
622, 156 A. 121, 122; Brasengton v. Williams, 143 S.C. 223, 141 S.E. 375, 382
21
42 EGRESS Often used interchangeably with the word "access."101
A proclamation or order of state, usually issued in time of
war or threatened hostilities, prohibiting the departure of
ships or goods from some or all the ports of such state
until further order.102
Embargo is the hindering or detention by any
government of ships of commerce in its ports. If the
embargo is laid upon ships belonging to citizens of the state
imposing It, it is called a "civil embargo;" if, as more
commonly happens, it is laid upon ships belonging to the
43 EMBARGO enemy, it is called a "hostile embargo." The effect of this
latter embargo is that the vessels detained are restored to
the rightful owners if no war follows, but are forfeited to the
embargoing government if war does follow, the declaration
of war being held to relate back to the original seizure and
detention.
The temporary or permanent sequestration of the property of
individuals for the purposes of a government, e. g., to obtain
vessels for the transport of troops, the owners being
reimbursed for this forced service.103
Any right to, or interest in, land which may subsist in
another to the diminution of its value, but consistent with
the passing of the fee.106
46 ENCUMBRANCE A claim, lien, charge, or liability attached to and binding real
property.107
An encumbrance may be a mortgage, a judgement lien, an
attachment, an inchoate right of dower, a mechanic's lien, a
101
C. Hacker Co. v. City of Joliet, 196 Ill.App. 415, 423.
102
See The William King, 2 Wheat. 148, 4 L.Ed. 206.
103
See Man. Int. Law, 143.
104
Miami Corporation v. State, 186 La. 784, 173 So. 315, 318.
105
See Blount; Plowd. 94a
106
Huyck v. Andrews, 113 N.Y. 81, 20 N. E. 581, 3 L.R.A. 789, 10 AntSt.Rep. 432; Miller v. Schwinn, Inc., 113
F.2d 748, 751, 752, 753, 72 App. D.C. 282.
107
Harrison v. Railroad Co., 91 Iowa, 114, 58 N.W. 1081; Johnson v. Bridge, 60 Cal.App. 629, 213 P. 512, 513.
22
lease, a restriction in deed, encroachment of a building, an
easement or right of way, accrued and unpaid taxes, and the
statutory right of redemption.108
The term "incumbrance" is sometimes used to denote a
burden or charge on personal property as e. g. a chattel
mortgage on a stock of goods.109
The gradual eating away of the soil by the operation of
currents or tides. Distinguished from submergence, which
48 EROSION
is the disappearance of the soil under the water and the
formation of a navigable body over it.113
49 ESCHEAT (In feudal law) Escheat is an obstruction of the course of
108
Funk v. Voneida, 11 Serg. & R. (Pa.) 112, 14 Am.Dec. 617; Bowman v. Franklin Ins. Co., 40 Md. 631; Kelsey v.
Remer, 43 Conn. 129, 21 Am. Rep. 638; Bigelow v. Hubbard, 97 Mass. 195; Redmon v. Insurance Co., 51 Wis.
293, 8 N.W. 226, 37 Am. Rep. 830; Shunk v. Fuller, 118 Kan. 682, 236 P. 449, 451; Estep v. Bailey, 94 Or. 59,
185 P. 227, 229; Hyman v. Boyle, 239 Mich. 357, 214 N.W. 163, 164; Gamorsil Realty Corporation v. Graef, 220
N.Y.S.221, 222, 128 Misc. 596; Krotzer v. Clark, 178 Cal. 736, 174 P..657 658; Thackeray v. Knight, 57 Utah, 21,
192 P. 263, 265; Ex parte Helm, 209 Ala. 1, 95 So. 546; Roy v. F. M. Martin & Son, 16 Ala.App. 650, 81 So. 142,
143.
109
Hartford Fire Ins. Co. v. Jones, 31 Ariz. 8, 250 P. 248, 251.
110
See 2 Bl. Comm. 135.
111
See 1 Bl. Comm. 387.
112
First Reformed Dutch Church v. Lyon, 32 N.J.Law, 360; Appeal of Wagner Institute, 116 Pa. 555, 11 A. 402.
113
Mulry v. Norton, 100 N.Y. 433, 3 N.E. 584, 53 Am.Rep. 206; State of Arkansas v. State of Tennessee, 246 U.S.
158, 38 S. Ct. 301, 304, 62 L.Ed. 638, L.R.A.1918D, 258.
23
descent, and consequent determination of the tenure, by
some unforeseen contingency, in which case the land
naturally results back, by a kind of reversion, to the
original grantor, or lord of the fee.114
It is the casual descent, in the nature of forfeiture, of lands
and tenements within his manor, to a lord, either on failure of
issue of the tenant dying seised or on account of the felony
of such tenant.
Also the land or fee itself, which thus fell back to the lord.
Such lands were called "excadentice," or "terrce
excadentiales."115
(In American law) Escheat signifies a reversion of property
to the state in consequence of a want of any individual
competent to inherit. The state is deemed to occupy the
place and hold the rights of the feudal lord.116
(Writ of Escheatment, concept) A writ which anciently lay for
a lord, to recover possession of lands that had escheated to
him.117
114
See 2 B1.Comm. 15; Wallace v. Harmstad, 44 Pa. 501; Marshall v. Lovelass, 1 N.C. 445; Kavanaugh v. Cohoes
Power & Light Corporation, 114 Misc. 590, 187 N.Y.S. 216, 231; State v. Phoenix Say . Bank & Trust Co., 60 Ariz.
138, 132 P.2d 637, 638.
115
See Fleta, lib. 6, c. 1; Co. Litt. 13a.
116
See 4 Kent, Comm. 423, 424. Center v. Kramer, 112 Ohio St. 269, 147 N.E. 602, 604; In re O'Connor's Estate,
126 Neb. 182, 252 N.W. 826; Braun v. McPherson, 277 Mich. 396, 269 N.W. 211, 212.
117
See Reg.Orig. 164b; Fitzh. Nat.Brev. 143.
118
Minnesota & Oregon Land & Timber Co. v. Hewitt Inv. Co., D.C.Or., 201 F. 752, 759.
24
property according to his testamentary provisions after
his decease.119
A person to whom a testator by his will commits the
execution, or putting in force, of that instrument and its
codicils.120
Appointment as executor of person on whom will casts
affirmative duty to collect debts, adjust claims and make
distribution of assets, is validated.121
One named in will as executor is an "executor" even before
probate of will.122
One to whom another man commits by his last will the
execution of that will and testament.123
Person appointed under will appointing person as
"administrator of my estate after my death," held
testamentary "executor".124
Person nominated as executor becomes "executor" only
when will is admitted to probate and when he takes oath.125
Person or corporation empowered to discharge duties of a
fiduciary, appointed as such by testator in his will.126
Term "executor" as employed in statute providing that
county judge shall receive commission on actual cash
receipts of each executor, refers to executor administering
estate of testator under control of probate court.127
Words "custodian and administrator" in will directing
appointment of named person mean "executor."128
(In civil law) A ministerial officer who executed or carried
into effect the judgment or sentence in a cause.
119
In re Lamb's Estate, 122 Mich. 239, 80 N.W. 1081; In re Sipchen's Estate, 180 Wis. 504, 193 N.W. 385, 387;
Ricks v. Johnson, 134 Miss. 676, 99 So. 142, 146.
120
See Fonbl. 307.
121
In re Hazen's Estate, 175 Misc. 851, 25 N.Y.S.2d 293, 295, 296.
122
McKibban v. Scott, 131 Tex. 182, 114 S.W.2d 213, 215, 115 A.L.R. 1421.
123
See 2 Bl.Comm. 503.
124
See Succession of Rassat, La.App., 157 So. 412, 414.
125
Robertson v. National Spiritualists' Ass'n, Tex., 25 S.W.2d 889, 894.
126
In re Watkins' Estate, 113 Vt. 126, 30 A.2d 305, 310.
127
Willis v. Harvey, Tex., 26 S.W.2d 288, 289.
128
Frazier v. Frazier, 83 Colo. 188, 263 P. 413, 414.
25
F
The gift of any corporeal hereditament to another129,
operating by transmutation of possession, and requiring, as
essential to its completion, that the seisin be passed130,
which might be accomplished either by investiture or by
livery of seisin.131
A gift of a freehold interest in land accompanied by livery of
seisin. The essential part is the livery of seisin. Also the deed
or conveyance by which such corporeal hereditament is
passed.
53 FEOFFMENT
A feoffment originally meant the grant of a feud or fee; that is,
a barony or knight's fee, for which certain services were due
from the feoffee to the feoffor. By custom it came afterwards
to signify also a grant (with livery of seisin) of a free
inheritance to a man and his heirs, referring rather to the
perpetuity of the estate than to the feudal tenure.132 It was for
ages the only method (in ordinary use) for conveying the
freehold of land in possession, but has now fallen in great
measure into disuse, even in England, having been almost
entirely supplanted by some of that class of conveyances
founded on the statute law of the realm.133
129
See 2 Bl. Comm. 310.
130
See Watk. Cony. 183.
131
See 1 Washb. Real Prop. 33. Thatcher v. Omans, 3 Pick., Mass., 532; French v. French, 3 N.H. 260.
132
See 1 Reeve, Eng.Law, 90, 91.
133
See 1 Steph.Comm. 467, 468; Dane, Abr. c. 104; Stearn, Real Act. 2; Green v. Liter, 8 Cranch, U.S., 229, 3 L.
Ed. 545.
134
In re Triborough Bridge Approach, City of New York, 159 Misc. 617, 288 N.Y.S. 697, 707.
135
Farmers & Merchants Bank v. Sawyer, 26 Ala.App. 520, 163 So. 657.
136
See Civ.Code Cal. § 660; Big Sespe Oil Co. v. Cochran, C.C.A.Cal., 276 F. 216, 225.
26
which it has been made.137
It has been said, however, that a "fixture" formerly meant any
chattel which on becoming affixed to the soil became a part
of the realty; but it now means those things which formed an
exception to that rule and can be removed by the person
who affixed them to the soil; if they can be taken away
without material injury to the realty.138
Things fixed or affixed to other things. The rule of law
regarding them is that which is expressed in the maxim,
"accessio cedit principali," "the accessory goes with, and as
part of, the principal subject-matter."
137
Bankers Life Ins. Co. v. Ohrt, 131 Neb. 858, 270 N.W. 497, 502.
138
Boise Ass'n of Credit Men v. Ellis, 26 Idaho, 438, 144 P. 6, 9, L.R.A.1915E, 917.
139
Intermountain Realty Co. v. Allen, 60 Idaho 228, 90 P. 2d 704, 706, 122 A.L.R. 647.
140
Nevitt v. Woodburn, 175 Ill. 376, 51 N.E. 593; Railroad Co. v. Hemphill, 35 Miss. 22; Ralston Steel Car Co. v.
Ralston, 112 Ohio St. 306, 147 N.E. 513, 516, 39 A.L.R. 334; Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex. 65,
285 S.W. 593, 596.
141
Gordon v. Barr, Cal.App., 82 P.2d 955, 956, 957.
142
In re Greenberg's Will, 286 N.Y.S. 56, 58, 158 Misc. 446.
27
143
As distinguished from a gift, in trust, it is one where not only
the legal title but the beneficial ownership as well is vested in
the donee.144
(In common law) The person appointed by law to succeed
to the estate in case of intestacy.149
One who inherits property, whether real or personal.150
The term is frequently used in a popular sense to designate
a successor to property either by will or by law.151
59 HEIR
The word must be construed according to testator's
intention as gathered from whole will.152
(In civil law) A universal successor in the event of death.
He who actively or passively succeeds to the entire
property or estate, rights and obligations, of a decedent,
143
Buecker v. Carr, 60 N.J.Eq. 300, 47 A. 34; Goodan v. Goodan, 184 Ky. 79, 211 S.W. 423, 424; Baker v. Baker,
123 Md. 32, 90 A. 776, 779; McCoy v. Shawnee Building & Loan Ass'n, 122 Kan. 38, 251 P. 194, 195, 49 A.L.R.
1441; First Nat. Bank v. Liberty Trust Co., 151 Md. 241, 134 A. 210, 213, 47 A.L.R. 730; Starks v. Lincoln, 316
Mo. 483, 291 S. W. 132, 134
144
Watkins v. Bigelow, 93 Minn. 210, 100 N.W. 1104; Allen v. Hendrick, 104 Or. 202, 206 P. 733, 740
145
Traylor v. State, 117 Tex.Cr.R. 323, 36 S.W.2d 506, 507.
146
Porto Rico Ry., Light & Power Co. v. Colom, C.C.A.Puerto Rico, 106 F.2d 345, 354.
147
White v. Rosenthal, 140 Cal. App. 184, 35 P.2d 154,1.55.
148
Jamieson v. Millemann, 3 Duer, N.Y., 255, 258.
149
See 2 Bla.Comm. 201; Dukes v. Faulk, 37 S.C. 255, 16 S.E. 122, 34 Am.St.Rep. 745.
150
Hartford-Connecticut Trust Co. v. Lawrence, 106 Conn. 178, 138 A. 159, 160.
151
Wallace v. Privett, 198 Cal. 746, 247 P. 906, 907.
152
Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121.
28
and occupies his place.
The term is indiscriminately applied to all persons who are
called to the succession, whether by the act of the party or
by operation of law. The person who is created universal
successor by a will is called the "testamentary heir ;" and
the next of kin by blood is, in cases of intestacy, called the
"heir at law," or "heir by intestacy." The executor of the
common law in many respects corresponds to the
testamentary heir of the civil law. Again, the administrator in
many respects corresponds with the heir by intestacy. By
the common law, executors and administrators have no
right except to the personal estate of the deceased ;
whereas the heir by the civil law is authorized to administer
both the personal and real estate.153
The home, the house, and the adjoining land where the
head of the family dwells; the home farm. The fixed
residence of the head of a family, with the land and
buildings surrounding the main house.158
62 HOMESTEAD
Technically, and under the modern homestead laws, an
artificial estate in land, devised to protect the possession
and enjoyment of the owner against the claims of his
153
See Story, Confl. Laws, §§ 57, 508; 1 Brown, Civ. Law, 344.
154
See Co.Litt. 5b; 2 Bl. Comm. 17; Nellis v. Munson, 108 N.Y. 453, 15 N.E. 739. Sox v. Miracle, 35 N.D. 458, 160
N.W. 716, 719.
155
Denver Joint Stock Land Bank of Denver v. Dixon, 57 Wyo. 523, 122 P.2d 842, 846, 140 A.L.R. 1270.
156
National Supply Co. v. McLeod, 116 Kan. 477, 227 P. 350.
157
Estate of Billings, 64 Cal. 427, 1 P. 701; In re Irvine's Estate, 114 Mont. 577, 139 P.2d 489, 147 A.L.R. 882.
158
Oliver v. Snowden, 18 Fla. 825, 43 Am.Rep. 338.
29
creditors, by withdrawing the property from execution and
forced sale, so long as the land is occupied as a home.159
(Homestead right, concept) The personal right to the
beneficial, peaceful and uninterrupted use of the home
property free from claims of creditors.160
65 IMPLEMENT/S Things used or employed for a trade, or furniture of a
159
Buckingham v. Buckingham, 81 Mich. 89, 45 N.W. 504.
160
Hill v. First Nat. Bank, 79 Fla. 391, 84 So. 190, 192, 20 A.L.R. 270.
161
Whitney v. Peay, 24 Ark. 27.
162
See Story, Bailm. § 288.
163
See Bowyer, Mod. Civil Law, 44, 45.
30
house. Whatever may supply wants; particularly applied to
tools, utensils, vessels, instruments of labor; as, the
implements of trade or of husbandry.164
An estate in things real, descending to the heir.168 Such
an estate in lands or tenements or other things as may be
inherited by the heir.
Though "inheritance" in its restricted sense means
something obtained through laws of descent and distribution
69 INHERITANCE from an intestate, in its popular use it includes property
obtained by devise or descent.169
(In civil law) The succession of 'the heir to all the rights
and property of the estate-leaver. It is either
testamentary, where the heir is created by will, or ab
intestato, where it arises merely by operation of law.170
164
Goddard v. Chaffee, 2 Allen (Mass.) 395, 79 Am.Dec. 796. Mississippi Road Supply Ca. v. Hester, 185 Miss.
839, 188 So. 281, 287, 124 A.L.R. 574.
165
Chenango County Humane Soc. v. Polmatier, 177 N.Y.S. 101, 103, 188 App.Div. 419.
166
See Inst. 2, 2; Civ. Code La. art. 460; Sullivan v. Richardson, 33 Fla. 1, 14 So. 692.
167
In re Corning's Will, 289 N. Y.S. 1101, 1103, 160 Misc. 434.
168
See 2 Bl. Comm. 201; Rountree v. Pursell, 39 N.E. 747, 11 Ind.App. 522.
169
Pacheco v. Fernandez. Tex. Civ.App., 277 S.W. 197, 198; Higby v. Martin, 167 Okl. 10, 28 P.2d 1097, 1102.
170
See Heinec. § 484.
31
J
The act of throwing overboard from a vessel part of the
cargo, in case of extreme danger, to lighten the ship.
The thing or things so cast out; jetsam.171
A carrier by water may, when in case of extreme peril it is
70 JETTISON
necessary for the safety of the ship or cargo, throw
overboard, or otherwise sacrifice, any or all of the cargo or
appurtenances of the ship. Throwing property overboard for
such purpose is called "jettison," and the loss incurred
thereby is called a "general average loss."172
K
Relation by birth or consanguinity.173
72 KINDRED
Relatives by blood. Next of kin.
171
Gray v. Waln, 2 Serg. & R., Pa., 254, 7 Am.Dec. 642; Butler v. Wildman, 3 Barn. & Ald. 326; Barnard v. Adams,
10 How. 303, 13 L.Ed. 417.
172
See Civil Code Cal. § 2148; Civil Code Dak. § 1245 (Comp. Laws 1913, N.D. § 6225; Rev. Code 1919, S.D. §
1147).
173
See In re Carroll's Estate, 153 Misc. 649, 275 N.Y.S. 911; Butler v. Elyton Land Co., 84 Ala. 384, 4 So. 675;
1009 KING Wetter v. Walker, 62 Ga. 144; O'Connell v. Powers, 291 Mass. 153, 197 N.E. 162, 163; Frank v.
Frank, 180 Tenn. 114, 172 S.W.2d 804, 806
174
See 2 Kent, Comm. 413. See Keviston v. Mayhew, 169 Mass. 166, 47 N.E. 612; Lusby v. Cobb, 80 Miss. 715,
32 So. 6; State v. Bielman, 86 Wash. 460, 150 P. 1194; Poff v. Pennsylvania R. Co., D.C.N.Y., , 57 F.Supp. 625,
626
175
State v. Hooper, 140 Kan. 481, 37 P.2d 52.
32
L
Principally, a question of inequity of permitting claim to
be enforced.176
Laches is, or is based on, delay attended by or inducing
change of condition or relation.177
Delay that warrants presumption that party has waived his
right.178
Knowledge, unreasonable delay, and change of position
are essential elements.179
74 LACHES
"Limitations" and "laches" are not synonymous; but
"limitations" signifies the fixed statutory period within which
an action may be brought for some act done to preserve a
right, while "laches" signifies delay independent of statute.
180
(Estoppel by laches) A failure to do something which
should be done or to claim or enforce a right at a proper
time.181 An element of the doctrine is that the
defendant's alleged change of position for the worse
must have been induced by or resulted from the
conduct, misrepresentation, or silence of the plaintiff.182
The liberal giving (as of money) to or as if to an inferior;
generosity.
75 LARGESS
The act of giving away money or the quality of a person who
gives away money
An estate in realty held under a lease; an estate for a
fixed term of years.183
76 LEASEHOLD
Right of tenant at will is "leasehold."184
176
Crowder v. Terhorst, 107 Ind.App. 288, 21 N.E.2d 141, 146; Brady v. Garrett, Tex.Civ.App., 66 S.W.2d 502,
504; Norman v. Boyer, 111 Colo. 531, 143 P.2d 1017, 1018;
177
Jones v. McNabb, 184 Okl. 9, 84 P.2d 429, 430; Shea v. Shea, 269 Mass. 454, 4 N. E.2d 1015, 1018; Collier v.
Caraway, Tex.Civ.App., 140 S. W.2d 910, 914, Poulin v. Poulin, 60 R.I. 264, 197 A. 878, 881.
178
Harrison v. Miller, 124 W.Va. 550, 21 S.E.2d 674, 679; Bank of Marlinton v. McLaughlin, 123 W.Va. 608, 17
S.E.2d 213, 218;
179
Shanik v. White Sewing Mach. Corporation, 25 Del.Ch. 371, 19 A.2d 831, 837.
180
In re Van Tassell's Will, 119 Misc. 478, 196 N.Y.S. 491, 494.
181
Hutchinson v. Kenney, C.C.A.N.C., 27 F.2d 254, 256.
182
Croyle v. Croyle, 184 Md. 126, 40 A.2d 374, 379.
183
See Stubbings v. Evanston, 136 Ill. 37, 26 N.E. 577, 11 L.R.A. 839, 29 Am.St.Rep. 300; Washington F. Ins. Co.
v. Kelly, 32 Md. 421, 3 Am.Rep. 149; Greene Line Terminal Co. v. Martin, 122 W.Va. 483, 10 S.E. 2d 901, 903.
184
Public Service Co. of New Hampshire v. Voudoumas, 84 N.H. 387, 151 A. 81, 83, 70 A.L.R. 480.
33
(Lease) Any agreement which gives rise to relationship of
landlord and tenant.185 It is [a] contract in writing, under seal,
whereby a person having a legal estate in hereditaments,
corporeal or incorporeal, conveys a portion of his interest to
another, in consideration of a certain annual rent or render,
or other recompense.186
185
Smith v. Royal Ins. Co., C.C.A.Cal., 111 F.2d 667, 671.
186
See Archb.Landl. & Ten. 2.
187
Farris v. Castor, 186 Okl. 668, 99 P.2d 900, 902; McBrien v. Harris, 39 Ga. App. 41, 145 S.E. 919; Radford v.
Kachman, 27 Ohio App. 86, 160 N.E. 875, 877; Plaxico v. Webster, 175 S.C. 69, 178 S.E. 270.
188
Farris 'v. Castor, 99 P.2d 900, 902, 186 Okl. 668.
189
Theatre Realty Co. v. Aronberg-Fried Co., C.C.A.Mo., 85 F.2d 383, 388, McCarty v. Robinson, 222 Ala. 287,
131 So. 895, 896; Springer v. J. R. Clark Co., C.C.A.Minn., 138 F.2d 722, 726.
190
Landis Mach. Co. v. Omaha Merchants Transfer Co., 142 Neb. 389, 9 N.W.2d 198, 203.
191
Guaranteed State Bank of Durant v. D' Yarmett, 67 Okl. 164, 169 P. 639, 641; Millsap v. Sparks, 21 Ariz. 317,
188 P. 135, 136.
192
Koenig v. Leppert-Roos Fur Co., Mo.App., 260 S.W. 756, 758; Steagall-Cheairs Fertilizer Co. v. Bethume Mule
Co., 181 Ala. 250, 61 So. 274, 275; Powers v. Fidelity & Deposit Co. of Maryland, 180 S.C. 501, 186 S.E. 523,
530.
193
Egyptian Supply Co. v. Boyd, C.C.A.Ky., 117 F.2d 608, 612.
34
Corresponding to riparian proprietors on a stream or small
pond are littoral proprietors on a sea or lake. But "riparian"
is also used coextensively with "littoral."194
One whose lands abuts on lake is a "littoral owner.”195
M
The intentional doing of a wrongful act without just
cause or excuse, with an intent to inflict an injury or
under circumstances that the law will imply an evil
intent.196
"Malice," in its common acceptation, means ill will
towards some person. In its legal sense, it applies to a
wrongful act done intentionally, without legal
80 MALICE justification. It includes intent and will.197
"Malice" in law is not necessarily personal hate or ill will, but
it is that state of mind which is reckless of law and of the
legal rights of the citizen.198
"Malice," in legal sense, characterizes all acts done with an
evil disposition, a wrong and unlawful motive or purpose, or
the willful doing of an injurious act without a lawful excuse.199
The half of anything. Joint tenants are said to hold by
82 MOIETY
moieties.201
194
Commonwealth v. Alger, 7 Cush., Mass., 94.
195
Darling v. Christensen, 166 Or. 17, 109 P.2d 585, 592; Peck v. Alfred Olsen Const. Co., 216 Iowa 519, 245
N.W. 131, 137, 89 A.L.R. 1147.
196
Luikart v. Miller, Mo., 48 S.W.2d 867, 871. Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769, 770.
197
State v. Robbins, 66 Me. 328.
198
Evers-Jordan Furniture Co. v. Hartzog, 237 Ala. 407, 187 So. 491, 493.
199
Giguere v. Rosselot, 110 Vt. 173, 3 A.2d 538, 542.
200
In re Wanamaker's Estate, 312 Pa. 362, 167 A. 592, 594.
201
See Litt. 125; 3 C.B. 274, 283; Young v. Smithers, 181 Ky. 847, 205 S.W. 949, 950
35
agreeably to the terms prescribed at the time of making
such conveyance.202
A conditional conveyance of land.203
A transfer of property passing conditionally as security for
debt.204
A debt by specialty, secured by a pledge of lands, of which
the legal ownership is vested in the creditor, but of which, in
equity, the debtor and those claiming under him remain the
actual owners, until debarred by judicial sentence or their
own laches.205
But, in many states in modern times, it is regarded as a
mere lien, and not as creating a title or estate.206 It is a
pledge or security of particular property for the payment of a
debt or the performance of some other obligation, whatever
form the transaction may take, but is not now regarded as a
conveyance in effect, though it may be cast in the form of a
conveyance.207
202
See 1 Washb. Real Prop. *475.
203
Mitchell v. Burnham, 44 Me. 299.
204
Potter v. Vernon, 129 Okl. 251, 264 P. 611, 613.
205
See Coote, Mortg. 1.
206
Zeigler v. Sawyer, Tex.Civ.App., 16 S.W.2d 894, 896.
207
Muth v. Goddard, 28 Mont. 237, 72 P. 621, 98 Am.St.Rep. 553; Johnson v. Robinson, 68 Tex. 399, 4 S.W.
625; Killebrew v. Hines, 104 N.C. 182, 10 S.E. 159, 17 Am.St.Rep. 672; Stockel v. Elich, 297 P. 595, 597, 112
Cal.App. 588; In re Morgan, D.C.N.J., 39 F.2d 489, 490.
36
N
In the law of descent and distribution, this term properly
denotes the persons nearest of kindred to the decedent, that
is, those who are most nearly related to him by blood; but it
is sometimes construed to mean only those who are entitled
to take under the statute of distributions, and sometimes to
84 NEXT OF KIN include other persons.208
The words "next of kin," used simpliciter in a deed or will,
mean, not nearest of kindred, but those relatives who share
in the estate according to the statute of distributions,
including those claiming per stirpes or by representation.209
NON COMPOS Not sound of mind; insane. This is a very general term,
85
MENTIS embracing all varieties of mental derangement.
208
See 2 Story, Eq.Jur. § 1065b; Barrett v. Egbertson, 92 N. J.Eq. 118, 111 A. 326, 327; Godfrey v. Epple, 100
Ohio St. 447, 126 N.E. 886, 11 A.L.R. 317; Close v. Benham, 97 Conn. 102, 115 A. 626, 627, 20 A.L.R. 351;
Hamilton v. Erie R. Co., 219 N.Y. 343, 114 N.E. 399, 403, Ann.Cas.1918A, 928; Arnold v. O'Connor, 37 R.I. 557,
94 A. 145, L.R.A.1916C, 898; Mostenbocker v. Shawnee Gas & Electric Co., 49 Okl. 304, 152 P. 82, 83,
L.R.A.1916B, 910.
209
Slosson v. Lynch, 43 Barb., N.Y., 147.
210
Yaffe v. City of Ft. Smith, 178 Ark. 406, 10 S.W.2d 886, 890, 61 A.L.R. 1138.
211
Hall v. Putney, 291 Ill.App. 508, 10 N.E.2d 204, 207.
212
Holton v. Northwestern Oil Co., 201 N.C. 744, 161 S.E. 391, 393.
213
City of Phoenix v. Johnson, 51 Ariz. 115, 75 P.2d 30; Wood, Nuis. § 1; District of Columbia v. Totten, 55
App.D.C. 312, 5 F.2d 374, 380, 40 A.L.R. 1461.
37
passage or use, in the cus- tomary manner, of any navigable
lake or river, bay, stream, canal, or basin, or any public park,
square, street, or highway, is a nuisance.214
In determining what constitutes a "nuisance," the question is
whether the nuisance will or does produce such a condition
of things as in the judgment of reasonable men is naturally
productive of actual physical discomfort to persons of
ordinary sensibility and ordinary tastes and habits.215
Nuisances are commonly classed as public and private,
and mixed. A public nuisance is one which affects an
indefinite number of persons, or all the residents of a
particular locality, or all people coming within the extent of
its range or operation, although the extent of the annoyance
or damage inflicted upon individuals may be unequal.216 A
private nuisance was originally defined as anything done to
the hurt or annoyance of the lands, tenements, or
hereditaments of another.217 As distinguished from public
nuisance, it includes any wrongful act which destroys or
deteriorates the property of an individual or of a few persons
or interferes with their lawful use or enjoyment thereof, or
any act which unlawfully hinders them in the enjoyment of a
common or public right and causes them a special injury
different from that sustained by the general public.
Therefore, although the ground of distinction between public
and private nuisances is still the injury to the community at
large or, on the other hand, to a single individual, it is evident
that the same thing or act may constitute a public nuisance
and at the same time a private nuisance.218 A mixed nuisance
is of the kind last described; that is, it is one which is both
public and private in its effects, public because it injures
many persons or all the community, and private in that it also
produces special injuries to private rights.219
214
See Civ. Code Cal. § 3479; Veazie v. Dwinel, 50 Me. 479; Bohan v. Port Jervis Gaslight Co., 122 N.Y. 18, 25
N.E. 246, 9 L.R.A. 711; Baltimore & P. R. Co. v. Fifth Baptist Church, 137 U.S. 568, 11 S.Ct. 185, 34 L.Ed. 784;
Ex parte Foote, 70 Ark. 12, 65 S.W. 706, 91 Am.St.Rep. 63.
215
Meeks v. Wood, 66 Ind.App. 594, 118 N.E. 591, 592.
216
Burnham v. Hotchkiss, 14 Conn. 317; Chesbrough v. Com'rs, 37 Ohio St. 508; Lansing v. Smith, 4 Wend.,
N.Y., 30, 21 Am.Dec. 89.
217
See 3 Bl. Comm. 216; Whittemore v. Baxter Laundry Co. 181 Mich. 564, 148 N.W. 437, 52 L.R.A.,N.S., 930,
Ann.Cas.1916C, 818.
218
Heeg v. Licht, 80 N.Y. 582, 36 Am.Rep. 654; Baltzeger v. Carolina Midland R. Co., 54 S.C. 242, 32 S.E. 358,
71 Am.St.Rep. 789; Willcox v. Hines, 100 Tenn. 538, 46 S.W. 297, 41 L.R.A. 278; Harris v. Poulton, 99 W.Va. 20,
127 S.E. 647, 650, 651, 40 A.L.R. 334.
219
Kelley v. New York, 27 N.Y.S. 164, 6 Misc. 516.
220
See Ex parte Thompson, 4 Bradf. Sur., N.Y., 154; Sykes v. Sykes, 2 Stew., Ala., 367, 20 Am.Dec. 40.
38
A will made by the verbal declaration of the testator, and
usually dependent merely on oral testimony for proof.
O
Occupancy is a mode of acquiring property by which a
thing which belongs to nobody becomes the property of
the person who took possession of it with the intention
of acquiring a right of ownership in it.221
The taking possession of things which before belonged
to nobody, with an intention of appropriating them to
one's own use. To constitute occupancy, there must be a
taking of a thing corporeal, belonging to nobody, with an
intention of becoming the owner of it.222
"Possession" and "occupancy," when applied to land, are
88 OCCUPANCY nearly synonymous terms, and may exist through a tenancy.
Thus, occupancy of a homestead, such as will satisfy the
statute, may be by means other than that of actual residence
on the premises by the widow or child.223
Occupancy is always actual, as distinguished from
possession, which may be actual or constructive.
Occupancy is never constructive, save in the sense that land
may be occupied through the actual possession of another.
224
"Occupancy" is act of taking or holding possession and
does not necessarily include residence.225
221
See Civ. Code La. art. 3412; Goddard v. Winchell, 86 Iowa, 71, 52 N.W. 1124, 17 L.R.A. 788, 41 Am.St.Rep.
481.
222
See Co. Litt. 416.
223
Walters v. People, 21 Ill. 178.
224
Davis v. State, 20 Ga.App. 68, 92 S.E. 550, 551.
225
Kornhauser v. National Surety Co., 114 Ohio St. 24, 150 N.E. 921, 923.
226
United States v. Fox, C.C.A.N.Y., 60 F.2d 685, 688.
227
Lechler v. Chapin, 12 Nev. 65; Wittkop v. Garner, 4 N.J.Misc. 234, 132 A. 339, 340.
39
Possession.
Where a person exercises physical control over land.228
Control; tenure; use.
90 OCCUPATION
"Occupation" of a dwelling house means living in it. The use
for which premises are intended should be considered in
determining what is meant by the word "unoccupied" as
contained in a policy.229
228
County Bank v. Marshel, 130 Neb. 141, 264 N.W. 470, 475.
229
Hoover v. Mercantile Town Mut. Ins. Co., 93 Mo.App. 111, 69 S.W. 42. A
230
People v. Roseberry, 23 Cal.App.2d 13, 71 P.2d 944.
231
Jackson v. Sill, 11 Johns., N.Y., 202, 6 Am.Dec. 363.
232
Kerns v. Warden, 88 Okl. 297, 213 P. 70, 72.
233
Trustees of Phillips Exeter Academy v. Exeter, 92 N.H. 473, 33 A.2d 665, 673.
234
See Civ. Code Cal. § 654.
235
Hardinge v. Empire Zinc Co., 17 Ariz. 75, 148 P. 306, 310.
40
a usufruct, the owner of it is said to possess the naked
ownership.236
P
A word; speech; hence, oral or verbal; expressed or
evidenced by speech only; not expressed by writing; not
expressed by sealed instrument.
The pleadings in an action are also, in old law French,
denominated the "parol," because they were formerly actual
viva voce pleadings in court, and not mere written
allegations, as at present.
(Parol evidence) Oral or verbal evidence; that which is given
by word of mouth; the ordinary kind of evidence, given by
witnesses in court.237 In a particular sense, and with
reference to contracts, deeds, wills, and other writings,
parol evidence is the same as extraneous evidence or
93 PAROL
evidence aliunde.
(Parol evidence rule) Under this rule, when parties put their
agreement in writing, all previous oral agreements merge in
the writing and a contract as written cannot be modified or
changed by parol evidence, in the absence of a plea of
mistake or fraud in the preparation of the writing.238
Parol or extrinsic evidence is not admissible to add to,
subtract from, vary or contradict judicial or official records
or documents, or written instruments which dispose of
property or are contractual in nature, and which are valid,
complete, unambiguous and unaffected by accident or
mistake.239
236
See Civ.Code La. art. 490; Maestri v. Board of Assessors, 110 La. 517, 34 So. 658.
237
See 3 Bl.Comm. 369.
238
Russell v. Halteman's Adm'x, 287 Ky. 404, 153 S.W.2d 899, 904.
239
Wheeler, Kelly & Hagny Inv. Co. v. Curts, 158 Kan. 312, 147 P.2d 737, 740.
240
Meacham v. Meacham, 91 Tenn. 532, 19 S.W. 757; Hudgins v. Sansom, 72 Tex. 229, 10 S.W. 104; Weiser v.
Weiser, 5 Watts, Pa., 279, 30 Am.Dec. 313; Thomason v. Thompson, 123 Okl. 218, 253 P. 99, 102; Gillespie v.
Jackson, 153 Tenn. 150, 281 S.W. 929, 932.
41
Partition does not create or convey a new or additional title
or interest but merely severs the unity of possession.241
A person who brings an action; the party who complains
95 PLAINTIFF or sues in a personal action and is so named on the
record.242
(In the law of bailment) A bailment of goods to a creditor
as security for some debt or engagement. A bailment or
delivery of goods by a debtor to his creditor, to be kept
‘til the debt be discharged.243
The necessary elements to constitute a contract one of
"pledge" are: Possession of the pledged property must
pass from the pledgor to the pledgee; the legal title to
the property must remain in the pledgor; and the
pledgee must have a lien on the property for the
payment of a debt or the performance of an obligation
due him by the pledgor or some other person.244
There is a clear distinction between mortgages and pledges.
96 PLEDGE In a pledge the legal title remains in the pledgor ; in a
mortgage it passes to the mortgagee. In a mortgage the
mortgagee need not have possession; in a pledge the
pledgee must have possession, though it be only
constructive. In a mortgage, at common law, the property
on nonpayment of the debt passes wholly to the mortgagee;
in a pledge the property is sold, and only so much of the
proceeds as will pay his debt passes to the pledgee. A
mortgage is a conditional conveyance of property, which
becomes absolute unless redeemed at a specified time. A
pledge is not strictly a conveyance at all, nor need any day
of redemption be appointed for it. A mortgagee can sell and
deliver the thing mortgaged, subject only to the right of
redemption. A pledgee cannot sell and deliver his pawn until
the debt is due and payment denied.
241
Noble v. Beach, 21 CaL2d 91, 130 P.2d 426, 430. Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472, 475.
242
R. Co. v. Scott, Tex.Civ.App., 28 S.W. 458; Carmody v. Land, 207 La. 625, 21 So.2d 764, 768.
243
See Story, Bailm. § 7; Civ. Code La. art. 3133; 2 Kent, Comm. 577; Stearns v. Marsh, 4 Denio, N.Y., 229, 47
Am.Dec. 248; Sheridan v. Presas, 18 Misc. 180, 41 N.Y.S. 451; Bank of Rochester v. Jones, 4 N.Y. 507, 55
Am.Dec. 290; Gloucester Bank v. Worcester, 10 Pick., Mass., 531; Lilienthal v. Ballou, 125 Cal. 183, 57 P. 897.
244
Rice v. Garnett, 17 Ala.App. 239, 84 So. 557, 558; Campbell v. Redwine Bros., 22 Ga.App. 455, 96 S.E. 347;
Sneeden v. Nurnberger's Market, 192 N.C. 439, 135 S.E. 1312 PLENE 328, 330; McAndrews v. Idawa Gold
Mining Co., 54 N.D. 734, 210 N.W. 514, 519, 51 A.L.R. 1123.
42
Act or state of possessing. That condition of facts under
which one can exercise his power over a corporeal thing
at his pleasure to the exclusion of all other persons.245
In the older books, "possession" is sometimes used as the
synonym of "seisin;" but, strictly speaking, they are entirely
different terms. "The difference between possession and
seisin is : Lessee for years is possessed, and yet the lessor
is still seised; and therefore the terms of law are that of
chattels a man is possessed, whereas in feoffments, gifts in
tail, and leases for life he is described as 'seised.’
(In English law) The first buying of a thing. A privilege
formerly enjoyed by the crown, of buying up provisions and
other necessaries, by the intervention of the king's
purveyors, for the use of his royal household, at an
appraised valuation, in preference to all others, and even
without consent of the owner.246
98 PREEMPTION
(Pre-emption claimant) One who has settled upon land
subject to pre-emption, with the intention to acquire title to
it, and has complied, or is proceeding to comply, in good
faith, with the requirements of the law to perfect his right to
it.247
(In Real Property Law) The name given to a mode of
acquiring title to incorporeal hereditaments by
immemorial or long-continued enjoyment.248
To create an easement by "prescription," the use must
have been open, continuous, exclusive, and under claim
of right for statutory period.249
The prescription by which the ownership of property is
99 PRESCRIPTION acquired, is a right by which a mere possessor acquires the
ownership of a thing which he possesses by the
continuance of his possession during the time fixed by law.
The prescription by which debts are released, is a
peremptory and perpetual bar to every species of action,
real or personal, when the creditor has been silent for a
certain time without urging his claim.250 In this sense of the
term it is very nearly equivalent to what is elsewhere
expressed by "limitation of actions," or rather, the "bar of
the statute of limitations."
245
Starits v. Avery, 204 Iowa 401, 213 N.W. 769, 771; Schenk v. State, 106 Tex.Cr.R. 564, 293 S.W. 1101, 1102;
State v. Compton, Mo.App., 297 S.W. 413, 414; Nevin v. Louisville Trust Co., 258 Ky. 187, 79 S.W.2d 688, 689
246
See 1 Bl.Comm. 287; Garcia v. Callender, 125 N.Y. 307, 26 N.E. 283.
247
Hosmer v. Wallace, 97 U.S. 575, 581, 24 L. Ed. 1130
248
Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625, 627. Hester v. Sawyers, 41 N.M. 497, 71 P.2d 646, 649, 112
A.L.R. 536.
249
Burk v. Diers, 102 Neb. 721, 169 N.W. 263, 264.
250
See Civ. Code La. arts. 3457-3459.
43
There is a distinction between title by "limitation" and a
"prescriptive title," in that the latter is based upon a
presumed grant to the property or use, while the former is
not.251
251
Abel v. Love, 81 Ind. App. 328, 143 N.E. 515, 520,
252
Ross' Estate v. Abrams, Tex.Civ.App., 239 S.W. 705, 707.
253
Simpson v. Anderson, 305 Ill. 172, 137 N.E. 88, 89; Peterson v. Demmer, D. C.Tex., 34 F.Supp. 697, 700.
254
See 4 Reeve, Eng. Law, 77. McCoy v. Clayton, 119 Pa. 133, 12 A. 860; Reno v. McCully, 65 Iowa 629, 22 N.W.
902; Appeal of Dawley, 16 R.I. 694, 19 A. 248
255
See Coote, Prob. Pr. (5th Ed.) 237-239; Mozley & Whitley.
44
That which is peculiar or proper to any person; that
which belongs exclusively to one; in the strict legal
sense, an aggregate of rights which are guaranteed and
protected by the government.256
The term is said to extend to every species of valuable right
and interest.257
More specifically, ownership; the unrestricted and exclusive
right to a thing; the right to dispose of a thing in every legal
way, to possess it, to use it, and to exclude everyone else
from interfering with it.258
That dominion or indefinite right of use or disposition
which one may lawfully exercise over particular things
or subjects.259
The exclusive right of possessing, enjoying, and disposing
of a thing.260
101 PROPERTY
The highest right a man can have to anything; being used
for that right which one has to lands or tenements, goods or
chattels, which no way depends on another man's courtesy.
The right of property is that sole and despotic dominion
which one man claims and exercises over the external
things of the world, in total exclusion of the right of any
other individual in the universe. It consists in the free use,
enjoyment, and disposal of all a person's acquisitions,
without any control or diminution save only by the laws of
the land.261
The word is also commonly used to denote everything
which is the subject of ownership, corporeal or incorporeal,
tangible or intangible, visible or invisible, real or personal;
everything that has an exchangeable value or which goes to
make up wealth or estate. It extends to every species of
valuable right and interest, and includes real and personal
property, easements, franchises, and incorporeal
hereditaments.262
256
Fulton Light, Heat & Power Co. v. State, 65 Misc.Rep. 263, 121 N.Y.S. 536.
257
McAlister v. Pritchard, 230 S.W. 66, 67, 287 Mo. 494.
258
See Mackeld. Rom. Law, § 265.
259
Transcontinental Oil Co. v. Emmerson, 298 Ill. 394, 131 N.E. 645, 647, 16 A.L.R. 507.
260
Barnes v. Jones, 139 Miss. 675, 103 So. 773, 775, 43 A.L.R. 673; Tatum Bros. Real Estate & Investment Co. v.
Watson, 92 Fla. 278, 109 So. 623, 626.
261
See 1 BI.Comm. 138; 2 Bl.Comm. 2, 15; Great Northern Ry. Co. v. Washington Elec. Co., 197 Wash. 627, 86
P.2d 208, 217.
262
Samet v. Farmers' & Merchants' Nat. Bank of Baltimore, C.C.A.Md., 247 F. 669, 671; Globe Indemnity Co. v.
Bruce, C.C.A. Okl., 81 F.2d 143, 150.
45
punishment or penalty; inflicting punishment or a
penalty.
Q
An area of soft, wet ground.
103 QUAGMIRE
Also, a situation that is hard to deal with or get out of: a
situation that is full of problems.
263
Murphy v. Casselman, 24 N.D. 336, 139 N.W. 802, 803; Venner v. Public Utilities Commission, 302 Ill. 232, 134
N.E. 17, 18.
264
Webb v. Williamson, 202 Ark. 763, 152 S.W.2d 312, 314.
46
(In civil law) A release of a debt. It is conventional, when it is
expressly granted to the debtor by a creditor having a
capacity to alienate; or tacit, when the creditor voluntarily
surrenders to his debtor the original title, under private
signature constituting the obligation.265
107 REMISSION
Forgiveness or condonation of an offense or injury.
(In common law) The act by which a forfeiture or penalty is
forgiven.266
265
See Civ.Code La. art. 2199. Hall v. Allen Mfg. Co., 133 La. 1079, 63 So. 591, 592.
266
United States v. Morris, 10 Wheat. 246, 6 L.Ed. 314.
267
McCormick v. Engstrom, 119 Kan. 698, 241 P. 685, 688.
268
Wharton; Sinnott v. Feiock, 165 N.Y. 444, 59 N.E. 265, 53 L.R.A. 565, 80 Am.St.Rep. 736; Healey v.
Humphrey, 81 F. 990, 27 C.C.A. 39.
269
Miles v. Securities Inv. Co., 171 Tenn. 417, 104 S.W.2d 823.
270
Hannibal Inv. Co. v. Schmidt, Mo.App., 113 S.W.2d 1048, 1052.
271
Warren v. Driscoll, 178 Minn. 344, 227 N.W. 199, 200.
272
Iowa State Say . Bank v. Black, 59 N.W. 283,91 Iowa, 490; Daley v. Saving Ass'n, 178 Mass. 13, 59 N.E. 452.
47
repudiation as breach, and brings suit for damages. Such
repudiation is but act or declaration in advance of any actual
breach and consists usually of absolute and unequivocal
declaration or act amounting to declaration on part of
promisor to promisee that he will not make performance on
future day at which contract calls for performance.273
The refusal on the part of a state or government to pay its
debts, or its declaration that its obligations, previously
contracted, are no longer regarded by it as of binding force.
(In civil law) The casting off or putting away of a woman
betrothed; also, but less usually, of a wife; divorcement.
The residue of an estate left by operation of law in the
grantor or his heirs, or in the heirs of a testator,
commencing in possession on the determination of a
particular estate granted or devised.274
Any future interest left in a transferor or his successor.275 It is
a vested interest or estate, in as much as person entitled to it
has a fixed right to future enjoyment.276
The term reversion has two meanings, first, as
designating the estate left in the grantor during the
continuance of a particular estate and also the residue
left in grantor or his heirs after termination of particular
estate.277 It differs from a remainder in that it arises by act of
111 REVERSION the law, whereas a remainder is by act of the parties. A
reversion, moreover, is the remnant left in the grantor, whilst
a remainder is the remnant of the whole estate disposed of,
after a preceding part of the same has been given away.278
(In Scotch law) A right of redeeming landed property which
has been either mortgaged or adjudicated to secure the
payment of a debt. In the former case, the reversion is called
"conventional;" in the latter case, it is called "legal ;" and the
period of seven years allowed for redemption is called the
"legal."
(Legal reversion, concept) The period within which a
proprietor is at liberty to redeem and adjudged from him for
debt.
273
Robinson v. Raquet, 1 Cal.App.2d 533, 36 P.2d 821, 825.
274
Strong v. Shatto, 45 Cal.App. 29, 187 P. 159, 162; Vantage Mining Co. v. Baker, 170 Mo.App. 457, 155 S.W.
466, 467.
275
Miller v. Dierken, 153 Pa.Super. 389, 33 A.2d 804, 805.
276
Probate Court of Washington County, 102 Minn. 268, 113 N.W. 888, 893.
277
Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641, 642. Miller v. C. I. R., C.C.A.6, 147 F.2d 189, 193.
278
Copenhaver v. Pendleton, 155 Va. 463, 155 S. E. 802, 806, 77 A.L.R. 324.
48
S
(In Maritime law) A compensation allowed to persons by
whose assistance a ship or its cargo has been saved, in
whole or in part, from impending danger, or recovered
from actual loss, in cases of shipwreck, derelict, or
recapture.279
Elements necessary to valid "salvage" are marine peril, with
service voluntarily rendered, when not required as existing
duty, or from a special contract, and success in whole or in
part, and that service rendered contributed to such success.
280
In the older books of the law, (and sometimes in modern
writings,) the term is also used to denote the goods or
property saved.
(Equitable salvage) By analogy, the term "salvage" is
sometimes also used in cases which have nothing to do
with maritime perils, but in which property has been
preserved from loss by the last of several advances by
different persons. In such a case, the .person making the
last advance is frequently entitled to priority over the others,
112 SALVAGE on the ground that, without his advance, the property would
have been lost altogether. This right, which is sometimes
called that of "equitable salvage," and is in the nature of a
lien, is chiefly of importance with reference to payments
made to prevent leases or policies of insurance from being
forfeited, or to prevent mines and similar undertakings from
being stopped or injured.281
(Salvage charges) This term includes all the expenses and
costs incurred in the work of saving and preserving the
property which was in danger. The salvage charges
ultimately fall upon the insurers.
(Salvage loss) That kind of loss which it is presumed would,
but for certain services rendered and exertions made, have
become a total loss. In the language of marine underwriters,
this term means the difference between the amount of
salvage, after deducting the charges, and the original value
of the property insured.282
(Salvage services) A service voluntarily rendered to a vessel
in need of assistance, and is designed to relieve her from
279
See 3 Kent, Comm. 245; Cope v. Vallette Dry-Dock Co., 7 S.Ct. 336, 119 U.S. 625, 30 L.Ed. 501; J. M. Guffey
Petroleum Co. v. Borison, C.C.A.Tex., 211 F. 594, 601.
280
Robert R. Sizer & Co. v. Chiarello Bros., D. C.N.Y., 32 F.2d 333, 335.
281
See 1 Fish.Mortg. 149; 3 Ch. Div. 411; L.R. 14 Eq. 4; 7 Ch.Div. 825.
282
Koons v. La Fonciere Cornpagnie, D.C.Cal., 71 F. 981
49
distress or danger, either present or to be reasonably
apprehended and for which a salvage reward is allowed by
the maritime law. )
283
See Stearns, Real Act. 2.
284
Deshong v. Deshong, 186 Pa. 227, 40 A. 402, 65 Am.St.Rep. 855.
285
Williams v. Swango, 365 Ill. 549, 7 N.E.2d 306, 309.
286
Ford v. Garner, 49 Ala. 603.
287
See G.S.N.C. §1 29-1, rule 12.
288
Shilling v. State, 143 Miss. 709, 109 So. 737, 739.
50
"easement" of the common-law, except that "servitude"
rather has relation to the burden or the estate burdened,
while "easement" refers to the benefit or advantage or the
estate to which it accrues.289
The term "servitude," in its original and popular sense,
signifies the duty of service, or rather the condition of
one who is liable to the performance of services. The
word, however, in its legal sense, is applied figuratively
to things. When the freedom of ownership in land is fettered
or restricted, by reason of some person, other than the
owner thereof, having some right therein, the land is said to
"serve" such person. The restricted condition of the
ownership or the right which forms the subject-matter of the
restriction is termed a "servitude," and the land so burdened
with another's right is termed a "servient tenement," while
the land belonging to the person enjoying the right is called
the "dominant tenement." The word "servitude" may be said
to have both a positive and a negative signification; in the
former sense denoting the restrictive right belonging to the
entitled party; in the latter, the restrictive duty entailed upon
the proprietor or possessor of the servient land.
All servitudes which affect lands may be divided into two
kinds — personal and real. Personal servitudes are those
attached to the person for whose benefit they are
established, and terminate with his life. This kind of servitude
is of three sorts,—usufruct, use, and habitation. Real
servitudes, which are also called "predial" or "landed"
servitudes, are those which the owner of an estate enjoys on
a neighboring estate for the benefit of his own estate. They
are called "predial" or "landed" servitudes because, being
established for the benefit of an estate, they are rather due
to the estate than to the owner personally.290 Real servitudes
are divided, in the civil law, into rural and urban servitudes.
Rural servitudes are such as are established for the benefit
of a landed estate; such, for example, as a right of way over
the servient tenement, or of access to a spring, a coal-mine,
a sand-pit, or a wood that is upon it. Urban servitudes are
such as are established for the benefit of one building over
another. (But the buildings need not be in the city, as the
name would apparently imply.) They are such as the right of
support, or of view, or of drip or sewer, or the like.291
Servitudes are also classed as positive and negative. A
positive servitude is one which obliges the owner of the
289
Rowe v. Nally, 81 Md. 367, 32 A. 198; Los Angeles Terminal Land Co. v. Muir, 136 Cal. 36, 68 P. 308.
290
Frost-Johnson Lumber Co. v. Sailing's Heirs, 150 La. 756, 91 So. 207, 245; Tide-Water Pipe Co.. v. Bell, 280
Pa. 104, 124 A. 351, 354, 40 A.L.R.‘ 1516.
291
See Mackeld. Rom. Law, § 316, et seq.
51
servient estate to permit or suffer something to be done on
his property by another. A negative servitude is one which
does not bind the servient proprietor to permit something to
be done upon his property by another, but merely restrains
him from making a certain use of his property which would
impair the easement enjoyed by the dominant tenement.292
292
Rowe v. Nally, 81 Md. 367, 32 A. 198
293
See 3 Bl. Comm. 90, 91.
294
See 1 Greenl. Ev. § 566; Medlin v. Platt County, 8 Mo. 239, 40 Am. Dec. 135; Edwards v. Thompson, 99 Wash.
188, 169 P. 327, 328; Knox v. Horne, Tex.Civ.App., 200 S. W. 259, 260; Cooper v. Hembree, 194 Okl. 465, 152
P:2d 695, 697
295
Kansas City v. Neal, 122 Mo. 232, 26 S.W. 695, 696.
296
See Sweet; Stone v. City of Los Angeles, 114 Cal.App. 192, 299 P. 838, 841.
297
Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472, 475.
298
Brown v. Bragg, 22 Ind. 122.
52
persons. Joint tenants have one and the same interest,
accruing by one and the same conveyance, commencing at
one and the same time, and held by one and the same
undivided possession. The grand incident of joint tenancy is
survivorship, by which the entire tenancy on the decease of
any joint tenant remains to the survivors, and at length to the
last survivor.299
(Several Tenancy) A tenancy which is separate, and not held
jointly with another person.
(Tenancy by the Entirety) Created by a conveyance to
husband and wife, whereupon each becomes seized and
possessed of the entire estate and after the death of one the
survivor takes the whole.300 It is essentially a "joint tenancy,"
modified by the common-law theory that husband and wife
are one person, and survivorship is the predominant and
distinguishing feature of each.301
(Tenancy in Common) Where property is held by several and
distinct titles by unity of possession, neither knowing his
own severally, and therefore they all occupy promiscuously.
302
The holding of an estate in land by different persons
under different titles, but there must be unity' of possession
and each must have right to occupy the whole in common
with his cotenants.303 Although "tenancy in common" is
generally used with reference to real property, a tenancy in
common may exist in personalty as well.304
299
See Pub.St. Mass.1882, p. 1292; Simons v. McLain, 51 Kan. 153, 32 P. 919; Thornburg v. Wiggins, 135 Ind.
178, 34 N.E. 999, 22 L.R.A. 42, 41 Am.St.Rep. 422; Van Ausdall v. Van Ausdall, 48 R.I. 106, 135 A. 850, 1634
TENANT 851; In re Huggins' Estate, 96 N.J.Eq. 275, 125 A. 27, 30.
300
Safe Deposit & Trust Co. v. Tait, D.C.Md., 295 F. 429, 431; Dutton v. Buckley, 116 Or. 661, 242 P. 626, 627;
Settle v. Settle, 8 F.2d 911, 912, 56 App.D.C. 50, 43 A.L.R. 1079; Raptes v. Cheros, 259 Mass. 37, 155 N.E. 787;
Gasner v. Pierce, 286 Pa. 529, 134 A. 494, 495; Smith v. Russell, 172 App.Div. 793, 159 N.Y.S. 169, 170.
301
United States v. Jacobs, Ill. & N. Y., 59 S.Ct. 551, 555, 306 U.S. 363, 83 L.Ed. 763.
302
Fullerton v. Storthz Bros. Inv. Co., 190 Ark. 198, 77 S.W.2d 966, 968.
303
Fry v. Dewees, 151 Kan. 488, 99 P.2d 844, 847.
304
Haster v. Blair, 41 Cal.App.2d 896, 107 P.2d 933, 934.
305
Pluche v. Jones, C.C.A.Tex., 54 F. 860, 865, 4 C.C.A. 622; Aubert's Appeal, 109 Pa. 447, 1 A. 336; Conklin v.
Egerton, 21 Wend., N.Y., 436; Ragsdale v. Booker, 2 Strob. Eq. (S.C.) 348; In re Lester's Will, 100 N.J.Eq. 521,
136 P. 322.
306
See Civ.Code La. art. 1571.
53
words "will," "testament," and "last will and testament"
as exactly synonymous.307 But strictly speaking, the term
testament denotes only a will of personal property; a will of
land not being called a "testament."308
The true declaration of a man's last will as to that which he
would have to be done, aster his death. It is compounded,
according to Justinian, from testatio mentis; but the better
opinion is that it is a simple word formed from the Latin
testor, and not a compound word.
One who has made a will; one who dies leaving a will.
If deceased's property passed to the devisees under his will,
119 TESTATE
then he died "testate" ; but, if no part of the property of his
estate passed by will, but by the statute of descent and
distribution, then he died "intestate".309
307
Occidental Life Ins. Co. v. Powers, 192 Wash. 475, 74 P.2d 27, 32, 114 A.L.R. 531.
308
Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d 644, 647, 134 A.L.R. 876.
309
Leffler v. Leffler, 151 Fla. 455, 10 So.2d 799, 804.
310
Coleman v. California Yearly Meeting of Friends Church, 27 Cal.App.2d 579, 81 P.2d 469, 470.
311
Diver v. Miller, Del.Super., 148 A. 291, 293.
312
City of Mobile v. McClure, 221 Ala. 51, 127 So. 832, 835.
54
313
A violation of a right in rem which plaintiff has as against all
persons with whom he comes in contact or the violation of a
right which is created by law and not by any act of parties.314
313
See Code Ga. 1882, § 2951 (Civ.Code 1910, § 4403). And see Hayes v. Insurance Co., 125 Ill. 626, 18 N.E.
322, 1 L.R.A. 303; Railway Co. v. Hennegan, 33 Tex. Civ.App. 314, 76 S.W. 453. Churchill v. Howe, 186 Mich.
107, 152 N.W. 989, 991; Strachan Shipping Co. v. HazlipHood Cotton Co., 35 Ga.App. 94, 132 S.E. 454, 459;
Keiper v. Anderson, 138 Minn. 392, 165 N.W. 237, 239, I.4.R.A.1918C, 299.
314
Mitchell v. Health Culture Co., 349 Mo. 475, 162 S.W.2d 233, 237.
315
Waco Cotton Oil Mill of Waco v. Walker, Tex.Civ.App., 103 S.W.2d 1071, 1072.
316
Grunson v. State, 89 Ind. 536, 46 Am.Rep. 178; Southern Ry. Co. v. Harden, 101 Ga. 263, 28 S.E. 847; Brown
v. Walker, 188 N.C. 52, 123 S.E. 633, 636.
317
Mawson v. Vess Beverage Co., Mo.App., 173 S.W.2d 606, 612, 613, 614.
55
U
An offense or annoyance. A feeling of pique or resentment
at some often fancied slight or insult.
122 UMBRAGE Shade; shadow.
Also means, an indistinct indication: vague suggestion; and
a reason for doubt.
318
Busch v. Stromberg-Carlson Tel. Mfg. Co., C.C.A. Mo., 217 F. 328, 330; Stewart v. G. L. Miller & Co., 161 Ga.
919, 132 S.E. 535, 538, 45 A.L.R. 559.
319
Minot v. Burroughs, 223 Mass. 595, 112 N.E. 620, 623; Rauer's Law & Collection Co. v. Harrell, 32 Cal. App.
45, 162 P. 125, 131.
320
Fraser v. Home Telephone & Telegraph Co., 91 Wash. 253, 157 P. 692, 694; In re Hackett, Hoff and
Thiermann, C.C.A.Wis., 70 F.2d 815, 819.
56
V
Empty; unoccupied; as, "vacant" office.321
Deprived of contents, without inanimate objects. It implies
entire abandonment, non-occupancy for any purpose.322
"Vacant" and "unoccupied," as used together in rider to fire
125 VACANT policy, have different meanings; term "vacant" meaning
"empty," while term "unoccupied" means lack of habitual
presence of human beings.323
Absolutely free, unclaimed, and unoccupied; as, "vacant"
land.324 But land which is partially cultivated may still be
"vacant land" within the meaning of a statute.325
321
Shaffner v. Shaw, 191 Iowa 1047, 180 N.W. 853, 854.
322
Foley v. Sonoma County Farmers' Mut. Fire Ins. Co. of Sonoma, Cal. App., 108 P.2d 939, 942.
323
Jelin v. Home Ins. Co., C.C.A.N.J., 72 F.2d 326, 327.
324
Donley v. Van Horn, 49 Cal.App. 383, 193 P. 514, 516. See, also, War Fork Land Co. v. Llewellyn, 199 Ky. 607,
251 S.W. 663, 665.
325
Di Legge v. Peper, 148 Md. 268, 129 A. 292, 293.
326
See 2 Kent, Comm. 234.
327
Slaughter v. Qualls, Tex., 162 S.W.2d 671, 674.
328
Paulson v. McMillan, 8 Wash.2d 295, 111 P.2d 983, 985.
329
The Fred Smartley, Jr., C.C.A.Va., 108 F.2d 603, 606.
330
See Co.Litt. 365a.
57
(In Sales of Personal Property) A statement or
representation made by the seller of goods,
contemporaneously with and as a part of the contract of
sale, though collateral to the express object of it, having
reference to the character, quality, or title of the goods, by
which he promises or undertakes that certain facts are or
shall be as he then represents them.331
A promise or agreement by seller that article sold has
certain qualities or that seller has good title thereto.332
A statement of fact respecting the quality or character of
goods sold, made by the seller to induce the sale, and
relied on by the buyer.333 “Warranty" in sale of personalty
ordinarily applies only between seller and immediate buyer,
and does not give such buyer right to sue original seller.334
(In Contracts) An undertaking or stipulation, in writing, or
verbally, that a certain fact in relation to the subject of a
contract is or shall be as it is stated or promised to be.
335
An express or implied statement of something
undertaken as part of contract but collateral to its object.336
A warranty differs from a representation in that a warranty
must always be given contemporaneously with, and as part
of, the contract; whereas a representation precedes and
induces to the contract. And, while that is their difference in
nature, their difference in consequence or effect is this: that,
upon breach of warranty, (or false warranty,) the contract
remains binding, and damages only are recoverable for the
breach; whereas, upon a false representation, the
defrauded party may elect to avoid the contract, and
recover the entire price paid.
The same transaction cannot be characterized as a warranty
and a fraud at the same time. A warranty rests upon
contract, while fraud, or fraudulent representations have no
element of contract in them, but are essentially a tort. When
judges or law-writers speak of a fraudulent warranty, the
language is neither accurate nor perspicuous. If there is a
breach of warranty, it cannot be said that the warranty was
fraudulent, with any more propriety than any other contract
can be said to have been fraudulent, because there has
331
Schley v. Zalis, 172 Md. 336, 191 A. 563, 564; Great Atlantic & Pacific Tea Co. v. Walker, Tex.Civ.App., 104 S.
W.2d 627, 632.
332
Chanin v. Chevrolet Motor Co., D.C.Ill., 15 F.Supp. 57, 58.
333
Hercules Powder Co. v. Rich, C.C.A.Ark., 3 F.2d 12, 14; Van Horn v. Stautz, 297 Ill. 530, 131 N.E. 153, 154.
334
Timberland Lumber Co. v. Climax Mfg. Co., C.C.A.Pa., 61 F.2d 391, 392.
335
United Iron Works Co. v. Henryetta Coal & Mining Co., 62 Okl. 99, 162 P. 209, 210; Hurley-Mason Co. v.
Stebbins, Walker & Spinning, 79 Wash. 366, 140 P. 381, 384, L.R.A.1915B, 1131, Ann.Cas.1916A, 948.
336
Pauls Valley Milling Co. v. Gabbert, 182 Okl. 500, 78 P.2d 685, 686.
58
been a breach of it. On the other hand, to speak of a false
representation as a contract or warranty, or as tending to
prove a contract or warranty, is a perversion of language
and of correct ideas.337
337
Rose v. Hurley, 39 Ind. 81; Boysen v. Petersen, 203 Iowa 1073, 211 N.W. 894, 895.
338
State v. Schwab, 109 Ohio St. 532, 143 N.E. 29, 31.
339
Temple v. Russell, 251 Mass. 231, 146 N.E. 679, 680, 49 A.L.R. 1
340
Tennessee Cent. R. Co. v. Morgan, 132 Tenn. 1, 175 S. W. 1148, 1153. State v. Summers, Mo.App., 281 S.W.
123, 124.
341
Carson v. Turrish, 140 Minn. 445, 168 N.W. 349, 352, L.R.A.1918F, 154.
342
Swinb. Wills, § 2; Thomas v. House, 145 Va. 742, 134 S.E. 673, 674; In re McCune's Estate, 265 Pa. 523, 109
A. 156, 157; Krause v. Krause, 113 Neb. 22, 201 N.W. 670, 673.
343
Howard's Ex'r v. Dempster, 246 Ky. 153, 54 S.W.2d 660, 661.
344
Tax Commission of Ohio v. Parker, 117 Ohio St. 215, 158 N.E. 89, 90.
345
In re Button's. Estate, 209 Cal. 325, 287 P. 964, 967.
346
In re Golden's Will, 165 Misc. 205, 300 N.Y.S. 737, 738.
347
In re Fowle's Estate, 292 Mich. 500, 290 N.W. 883, 885.
59
wills, for wills pass no interest until after the death of the
maker.348 An instrument, although in form of a bill or note,
which is intended to have no operation until death of maker,
is not "contractual" but is of the nature of a "will."349
"Codicil" to will is distinguished from new "will," in that the
latter revokes the first in its entirety unless otherwise
provided therein.350
The distinction between a "will" and a "power of
appointment" Is that a will concerns the estate of the
testator, while an appointment under a power concerns that
of the donor of the power. 351
A gift inter vivos is distinguishable from a will in that such a
gift may be made by parol and, upon the acceptance of the
gift by the donee, the gift is irrevocable by the donor, while
ordinarily a will is required to be in writing, and usually is
made in view of the fact of death, and is ineffective until the
death of the testator and the admission of the will to
probate.352
A will, when it operates upon personal property, is
sometimes called a "testament," and when upon real
estate, a "devise;" but the more general and the more
popular denomination of the instrument embracing equally
real and personal estate is that of "last will and testament."
353
348
Jung v. Petermann, Tex.Civ.App., 194 S.W. 202, 205; Moss v. Hodges, 294 Ky. 677, 172 S.W.2d 584, 585;
Willis v. Fiveash, Tex.Civ.App., 297 S.W. 509, 510; Sims v. Brown, 252 Mo. 58, 158 S.W. 624, 627.
349
In re Murphy's Estate, 193 Wash. 400, 75 P.2d 916, 924.
350
In re Bissell's Estate, 302 Pa. 27, 153 A. 692, 694.
351
Thompson v. Pew, 214 Mass. 520, 102 N.E. 122.
352
York v. Trigg, 87 Old. 214, 209 P. 417, 423.
353
See 4 Kent, Comm. 501; In re Kiltz's Will, 125 Misc.Rep. 475, 211 N.Y.S. 450, 461.
354
Merrill v. Comstock, 154 Wis. 434, 143 N.W. 313, 317.
60
Y
In the law of real property, it is to perform a service due
by a tenant to his lord. Hence the usual form of reservation
of a rent in a lease begins with the words "yielding and
paying."
130 YIELD
The word "yielding," as used in a patent claim, is not the
equivalent of "resilient," or "spring-supported," but may be
applied to a part which is retractable at will.355
Z
(Zealous witness) An untechnical term denoting a witness,
on the trial of a case, who manifests a partiality for the side
131 ZEALOUS
calling him, and an eager readiness to tell anything which
he thinks may be of advantage to that side.
355
Mergenthaler Linotype Co. v. International Typesetting Mach. Co., D.C.N.Y., 229 F. 168, 192.
61