Strong v. White

| Conn. | Jul 15, 1848

Storks, J.

The principal question in this case, is, whether the bequest to the defendant, James W. White, of the testator’s “ moveable property,” embraced the judgment against Stewart.

The law attaches no technical or artificial meaning to that phrase : and we must therefore construe it according to its ordinary signification, unless there is something in the other parts of the will, which shows, that the testator intended to use it in a different sense. But we find nothing elsewhere in that instrument, which sheds any light on the subject in this respect. The popular meaning must therefore prevail. The adjective moveable, applied to property, signifies, in its ordinary and proper sense, that which is capable of being moved, or put out of one place into another. It therefore necessarily implies, that such property has an actual locality, and is susceptible of locomotion, or a change of place. But this is predicable of that only which is corporeal and tangible. A judgment is obviously not of this character; since, like other choses in action, it is, in its nature, incorporeal, and therefore has no real locality ; although, as we shall hereafter have occasion to perceive, judgments sometimes have, in contemplation of law, for certain purposes, (not applicable to the point now before us,) a fictitious or imaginary locality assigned to them, and are deemed to exist in a particular place.

It is however insisted, that the word moveable, applied as an epithet to property, is equivalent to the word personal: and in support of this claim, we are referred to Blackstone. This position, however, so far from being supported, is discountenanced by that writer. In his chapter describing the nature and kinds of personal property, (2 Comm. 383.) he commences, by stating, that “ under the name of things personal, are included all sorts of things moveable, which may atienda man’s person wherever he goes:” and he subsequently adds : “ But things personal, by our law, do not only include things moveable, but also something more ; the whole of which is comprehended under the name of chattels.” He then proceeds to show, that this last term signifies not only goods or moveables, but whatever was not a feud, and adds : “ It is in this latter, more extended, negative sense, that our law adopts it : the idea of goods or moveables only, being not sufficiently comprehensive to take in every thing that the law considers as a chattel interest.” From this passage it is quite plain, that he did not deem the phrases moveable property and personal property to be equivalent; bui, on the contrary, that he considered moveable property to be only one of the several species of personal property.

When Judge Black stone, speaking of what is included in personal property, mentions “ moveables which may attend a man’s person,” &c. it is, we think, moreover, plain from the context and his subsequent enumeration, (on page 387.) of what he intended to embrace by that expression, that he used it in its literal, primitive sense, as indicating that particular species of personal property, which consists of tangible, corporeal, locomotive chattels, and not choses in action, to which it 'would apply only in an imaginary, artificial, legal sense : a chose in action having, as it is sometimes expressed, no corpus, but being a mere right, not in a thing (in re,) but to a thing, (ad rem,) and having, therefore, no actual locality: which right is indeed often evidenced by a written instrument, although such instrument does not constitute right itself, nor in any sense, the property therein. Indeed, those instruments, such as bonds, bills and notes, were not, at common law, the subjects of larceny, because they were not deemed to be of any intrinsic value. Calye's case, 8 Co. 33. 1 Hawk. P. C. c. 33. s. 55. 4 Bla. Com. 234. Nor do we find any case, in which they give a locality to the debts evidenced by them, so that those debts pass by a general bequest of property described as being situated in the place where those instruments happen to be. On the contrary, it is held, that a bill of exchange, mortgage, bond, or banker’s receipt, do not pass, by a bequest of all the testator’s property in a particular house, where those instruments are ; and the reason given is, that bills, bonds, «fee. are mere evidence of title to things out of the house, and not things in it. Fleming v. Brooke, 1 Scho. & Lef. 318. Lambert v. Lambert, 11 Ves. 607. So a bequest of in-door moveables has been held not to include notes and other choses in action. Penniman v. French, 17 Pick. R. 404. We cannot suppose, that Judge Blackstone intended to convey a different idea from that which we have imputed to him, by those general and casual expressions to which we have been referred, in other portions of his commentaries, which, although not perhaps critically exact, were sufficiently so, for the purpose for which he introduced them in that elementary work, but were not designed to have any reference or application to such a point as the one now before us. See 1 Stephen’s Com. 156. 2 Id. 65. part 2. ch. 1. Co. Litt. 118. b. 1 Atk. 183. Com. Dig. tit. Biens. D. 2.

The same remark also applies to the quotations, which have been made, by the defendants, from other elementary writers.

We have looked in vain at the cases on the subject of devises, to find any judicial construction of the particular phrase “ moveable property,” used in the bequest here in question, either as connected or not with the other language of the will, in reference to the question whether choses in action are thereby embraced. In Sparke v. Denne, however. (Win. Jones’ Rep. 225.) is a determination upon the meaning of a bequest, the language of which is exactly synonymous with that phrase, and where, as in the present case, the construction of it was not aided by any other part of the will. The testator, in that case, after devising several pecuniary legacies to several persons, devised the residue “ of all my moveable goods and chattels” to his wife. The question was, whether debts due on bond to the testator, at the time of his decease, passed by that bequest ; and it was held, after much argument and consideration, that they did not. The court say, that “ by the devise of ‘ all my moveable goods and chattels,’ debts, which are jura, [rights or choses in action,] are not devised.” The words “ moveable property,” used in the devise before us, and the words “ moveable ¿roods and chattels,” used in the devise in that case, are precisely equivalent, both phrases having relation to personal property. If, therefore, the Bequest is restricted, by the word moveable, in one case, it must be in the oilier. It is well settled, that a bequest -of “all my goods and chattels,” is sufficiently comprehensive to embrace every species of personal property, and consequently, choses in action ; but it was there held to be restricted, by the term moveable, so as to exclude debts ; that word having been construed, according to its ordinary and proper meaning, as applying only to tangible personal property. This case, therefore, is in point; and we find no other that is inconsistent with it. If the bequest, in the present case, hod been of all the testatof’s moveables, his intention to exclude debts due to him, would have been more palpable; but it is difficult to distinguish that term, in meaning, from the phrase moveable property. There are other cases, besides the one cited, which have some, although not such a particular bearing on the question before us, as renders it important for us to notice them.

We think, therefore, that the judgment against Stewart did not pass by the devise in question.

Judgment debts are bona notabilia in the state only where the judgments are rendered. It therefore appertained solely to the proper tribunal of the state of Ohio to cause the judgment against Stewart to be administered upon there, as a part of the estate of David While sen. For that purpose, the law imputes to it a locality within that jurisdiction, and not elsewhere. The authorities are decisive on this point. Cro. Eliz, 472. 3 Dyer, 305. a. in noth. 3 Bac. Abr. 37, 8. Toller, 55. 1 Wms. Sound. 274. n. (3.) Slocum v. Sanford, 2 Conn. R. 533.

In the case last cited, the law is thus stated by Gould, J. : “ As to the transmission of persona! chattels, by succession, distribution or bequest, the rule is, that they have no locality, but follow the law of the last domicil of the deceased owner. But with respect to the question of 'probate jurisdiction, the cases establish this distinction ; that, debts by specialty or judgment have a temporary locality, but that those due by simple contract, have not. The former are regarded as effects only at the place where the securities are found, at the death of the creditor ; the latter follow the person of the debtor, and are considered as effects in the jurisdiction in which the debtor is, at the time, domiciled.'”

The executors of David White sen., therefore, were not guilty of any breach of duty in not causing the judgment against Stewart, recovered in Ohio, to be inventoried here.

But when the defendant, Joseph W. While, one of those executors, after the death of his coexecutor, by means of a suit brought here upon that judgment, collected a part of the amount due thereon, it became his duty to account therefor to the court of probate ; and for neglecting to do so, he became liable on his official bond, which requires him to account to that court for all the property of the testator, which should at any time come into his hands or possession.

[Here the judge stated the breaches assigned in the plaintiff’s replication.]

The first breach assigned, regarding the neglect of the executors to inventory the judgment rendered in the state of Ohio against Stewart, constitutes, as we have seen, no violation of their duty, and indeed, is not relied upon, by the plaintiff. Whatever we might think as to the validity of the second breach, which we do not deem it necessary to consider, we are of opinion, that it sufficiently appears from the allegations in the third, that the said James has never rendered to the court of probate any account for what he received on the judgment recovered by him ; and that he is, therefore, liable on his bond. This breach is obviously framed somewhat inartificially. It seems to have been drawn up under a mistaken impression, that it was the duty of the surviving executor to exhibit to that court a technical inventory of the judgment recovered by him, or of its proceeds. But he alleges, that the executor had converted and applied to his own use the money received for the land set off to him under that judgment; and we think, that, connecting that averment with the subsequent allegation of his neglect to exhibit an inventory, and construing the whole together, with reference to the subject matter, it may fairly bo considered as amounting to a statement that he had unlawfully disposed of that money, and neglected to account for it. to the court of probate. No special demurrer being interposed for want of form in the replication, we are not disposed to be very nice in regard to the construction of this part of the pleadings. We do not intend, however, to decide, whether the allegations in this breach would be held sufficient to subject the defendant. for not rendering an account, in a case where a technical inventory is required. A different question might be there presented.

The damages should be the sum received for said land, by said executor, with interest.

The superior court is advised to render judgment for the plaintiff accordingly.

In this opinion the other Judges concurred.

Judgment for plaintiff.