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LEASE OF CONVICTS

whether they belong to the landowner or the "The attempt is made to construe the ex. lessee, to be taxed under the designation of pression leasing or hiring of convicts,' as “leasehold." If they belong to the owner of used in the Constitution, as being synony- the land, they are charged to him, either as mous with leasing of farms to be worked by land or as personal property. Their value the convicts.' How futile such an effort is is not to be included in, or taken to make up, will be apparent when we recall that at the the value of the intangible thing, the leaseadoption of the Constitution there was no hold. State v. Bare, 56 S. E. 390, 393, 60 system of leasing farms, and hence it was W. Va. 483. impossible that the constitutional convention Under Burns' Ann. St. 1908, 88 8395, could have dealt with a situation which had 8396, giving a mechanic's lien on buildings never arisen." Henry v. State, 39 South. 856, and land to the extent of the title of the 876, 87 Miss. 1.

owner for whose immediate benefit the labor

was done, or materials furnished, and where LEASEHOLD

the owner has only a leasehold, the lien is A "leasehold" is defined to be “an es- not impaired by a forfeiture of the lease for tate in realty held under a lease.” Hayes v. rent, one furnishing materials under a conCity of Atlanta, 57 S. E. 1087, 1089, 1 Ga. tract with a purchaser in possession does App. 25 (quoting and adopting definition in not obtain a lien on the building as against Black, Law Dict.).

the vendor after a surrender of the posses“A 'leasehold interest is not real estate, term "leasehold” not including such purchas

sion and rights of the purchaser; the but merely a chattel real, which is personal

Toner v. Whybrew, 98 N. E. 450, 453, 50 property.” Townsend v. Boyd, 66 Atl. 1099,

Ind. App. 387. 1101, 217 Pa. 386, 12 L. R. A. (N. S.) 1148.

As chattel real A "leasehold" is an intangible chattel

See Chattel Real. real; it is an entity per se, distinguished from the fee ownership out of which it is- As freehold sues. “Whether the distinction seems re- See Freehold. fined or not, it is real in legal thought, for a

As goods and chattels leasehold is not the wheat or corn produced

See Goods. under the right conferred by the lease. The lease is a thing apart from the commodities As homestead produced under the right conferred by it." A See Homestead. sealed writing demising and leasing for coal

As interest in land mining and coke manufacturing purposes for

See Interest (In Property). thirty years a tract of land, and granting unto the lessee the sole right of mining, ship- As property ping, and selling coal from the leased prem- See Personal Property; Property; Real ises, with an extension to remove coal which Property. can be profitably mined, providing for a rent or royalty to the lessor of ten cents a ton LEAST for all coal mined, containing a forfeiture clause for breach of covenant, created a

See At Least. leasehold or chattel real, taxable to the lessee under Acts 1905, p. 285, c. 35. Harvey LEAVE-LEAVING Coal, etc., Co. v. Dillon, 53 S. E. 928, 936, 59

See Die Leaving Children; Die Leaving W. Va. 605.

No Children; Die Leaving No Issue; A “leasehold" is the right to use proper- Loss Through His Leaving; Should ty upon which a lease is held for the purpos- They Leave Issue. es of the lease. It is intangible property,

Going away from a horse, beyond sight, which the law recognizes as having value, hearing, and reasonably immediate reach, is but which is incorporeal in its nature. It is "leaving” it, within a city ordinance declarnot the property upon which the lease is held ing leaving any horse unbitched within a nor the property used in its exercise. In street a nuisance. Monroe v. Hartford St. determining the taxable value of the lease Ry. Co., 56 Atl. 498, 500, 76 Conn. 201. hold, the pecuniary value of the property used in connection therewith or the use of

The word "leaving," as used in an ordiwhich constitutes the leasehold estate may

nance forbidding the leaving of a horse, etc., not be taken into consideration. The land unattended in the street, means to desert, to which constitutes the subject of the lease abandon, to forsake; hence to give up, to hold is taxed, not as a leasehold, nor in the relinquish. Southern Hardware & Supply name of the lessee, but as land, in the Co. v. Standard Equipment Co., 48 South. name of the owner, and is not to be taxed 357, 358, 158 Ala. 596. over again in the name of the lessee, on the The word "leave," in a letter written by theory that it constitutes part of the lease testator to plaintiff, reciting "Delos, if there hold. Nor are the improvements on the land, is not any change in my family, I shall leave

one-half of what I have for you, but have , do not produce fermentation. F. H. Leggett willed you $1,000—now I want to say to you & Co. v. United States, 131 Fed. 817, 818. -you get me up a cane that will be good enough for you when I get through with, LEAVES and I will leave the cane and $1,000 with it when I get through," means prima facie See Ornamental Leaves. will. The testator accepted the cane fur- Artificial leaves, see Artificial Flowers. nished by plaintiff, and used it for many As to palm leaves which have been subyears, but did not leave $1,000 to plaintiff,jected to processes that restore their natural but substantially all of his property to an appearance and prevent decay, and some of adopted daughter, who was amply provided which have been arranged in wreaths on for without the $1,000. Plaintiff was entitled wire frames, held that, as there had been no to specific performace of the contract cre- advance in manufacture that destroyed the ated by the letter. Bush v. Whitaker, 91 N. original articles or made them useful for othY. Supp. 616, 618, 45 Misc. Rep. 74.

er purposes, or altered their trade desiguaDefendant's dray driver finished loading tion, they still remained dutiable as "leaves," his dray from a car, drove away from the under Tariff Act July 24, 1897, c. 11, § 1, car from four to six feet and stopped the Schedule N, par. 425, 30 Stat. 191, rather team, and was tying the load on the dray than as “manufactures” of palm leaf, prowithout having hold of the lines, when an- vided for in paragraph 450, 30 Stat. 193. other team frightened his horses and they Kreshower v. United States, 152 Fed. 485, backed against the car, crushing plaintiff. 486. Held, that the driver was not negligent as having left his team, within an ordinance LEDGER making it unlawful to leave an animal attached to a dray upon a public street with- See Stock Ledger. out locking the wheels of the vehicle; to

As book of original entries, see Book of "leave," within the ordinance, meaning to

Original Entries. depart or abandon for the time, to go away A ledger is a book of accounts in which from the immediate charge and supervision are collected and arranged, each under its of the animals. While the driver of M.'s appropriate head, the various transactions team had gotten down to fasten his load, scattered throughout the journal or daybook. B.'s team was negligently driven so as to First Nat. Bldg. Co. v. Vandenberg, 119 Pac. frighten M.'s team, which backed up and 224, 227, 29 Okl. 583. crushed plaintiff's intestate. Held, that the fact that the accident would not have hap

LEFT pened if the wheels of M.'s dray had been locked was no excuse for the negligent driv- See Whatsoever is Left. ing of B.'s team, where the act of M.'s driv

“Left," in a devise of all the testatrix's er in getting down did not amount to a leav- estate to two grandchildren equally to be ing of his team within an ordinance requir- their estate, not subject to the debts or coning wheels to be locked in such cases, the trol of their husbands, and providing that condition and equipment of M.'s dray being on the death of either of them without deimmaterial on the question of B.'s liability, scendants the survivor should have the share unless M.'s driver violated the ordinance and of the one so dying, and on the death of the by the fact of so doing was negligent. Sul survivor without descendants what was left livan v. Morton Draying & Warehouse Co., should go to the others, shows that testatrix 108 Pac. 895, 896, 13 Cal. App. 35.

did not intend to devise to others the entire Laws N. C. 1899, p. 175, c. 54, 8 62, author- fund, but only so much of it as should vest izes service on certain insurance companies at the death of the surviving issue. Irvine by "leaving" the summons in the office of v. Putnam (Ky.) 89 S. W. 520, 521. the commissioner of insurance. Held that, where a return recited that service was made LEFT SECURED ON MY REAL ESTATE by reading the summons to the commission- In a will giving testator's wife, the iner of insurance and "delivering" a copy there- terest on a sum of money so long as she of to him, it would be presumed that a copy lives and remains unmarried, to be "left seof the summons was left with the commis- cured on my real estate," the phrase quotsioner; the court in which the action was ed did not require the legacy to the wife to brought being one of general jurisdiction. be secured by a mortgage on testator's real Johnston v. Mutual Reserve Life Ins. Co., estate, but created a charge on such real 93 N. Y. Supp. 1052, 1059, 104 App. Div. 550. estate without the aid of a mortgage. Plum

v. Smith, 62 Atl. 763, 764, 70 N. J. Eq. 602. LEAVENED

LEFT WITH Edible wafers, raised in the making by A person being in charge of an office the use of baking powder or bicarbonate of must be understood to have been in charge soda, are “lea vened,” although such agents of the whole of it, and a paper placed before

V.

his eyes in a conspicuous place on the office for its distribution, is not a "legacy” or desk therein is, in contemplation of Code Civ. "distributive share,” within the meaning of Proc. § 1011, “left with a person having such terms as used in War Revenue Act charge" of the office. People v. Perris Irr. June 13, 1898, c. 448, $ 29, 30 Stat. 464; Dist., 76 Pac. 381, 142 Cal. 601.

and, under Act June 27, 1902, c. 1160, § 3,

32 Stat. 406, which provides that no tax LEG

shall be assessed under said section 29 in

respect of any contingent beneficial interest See Breaking of a Leg.

which shall not become absolutely vested in A policy insuring against an accidental possession or enjoyment prior to July 1, 1902, breaking of a “leg or arm" covers fractures the only interest of the legatee in such inof bones of the limbs whether in the hands come which was subject to taxation was the or feet or in the upper or central divisions of amount thereof actually received by him the limbs, including a fracture of the heel prior to said July 1, 1902, provided such bone (os calcis). Rogers v. Modern Brother- amount was $10,000 or more. Lynch hood of America, 111 S. W. 518, 131 Mo. Union Trust Co. of San Francisco, 164 Fed. App. 353.

161, 163, 90 C. C. A. 147.

Shares of stock in a New Jersey corLEGACY

poration belonging to a testatrix, resident of See Beneficial Legacy; Contingent Leg- Rhode Island, and passing under a bequest

acy; Cumulative Legacy; Demonstra- | in her will, are subject to the inheritance tive Legacy; Entitled to Legacy; Gen- tax imposed by P. L. 1906, p. 432, c. 228, eral Legacy; Modal Legacy; Specific entitled "An act to amend an act entitled Legacy; Vested Legacy.

'An act to tax intestates' estates, legacies,'” Legacies are parcels of the distributable tax' when the transfer is by will of property

etc., which by section 1, subd. 2, imposes a estate. Their amount may be expressed in

within the state, and decedent was a nonprecise figures, or they may be determinable

resident of the state at death; the stock beupon an established basis of computation. ing embraced by the term "legacies” as used Blakeslee v. Pardee, 56 Atl. 503, 505, 76 Conn. in the title. Dixon v. Russell, 73 Atl. 51, 263.

52, 78 N. J. Law, 296. Testamentary trustees are entitled to pay the income from trust funds to the Gift causa mortis distinguished guardian of an infant beneficiary pending See Gift Causa Mortis. proceedings for settlement of their accounts without requiring a bond; such income be- Payment of debt ing neither a "legacy" nor “distributive A legacy implies a bounty, and not a share,” within Code Civ. Proc. & 2746. In re payment. In re Dailey's Estate, 89 N. Y. Williams, 123 N. Y. Supp. 383, 384, 66 Misc. Supp. 538, 542, 43 Misc. Rep. 552. Rep. 417.

The word “legacy," as used in the War Testator gave his sister a specified Revenue Act June 13, 1898, imposing a tax amount and also one-half of his residuary on “legacies" in the hands of administrators, estate. By a codicil he gave to two nieces executors, or trustees, is a definite gift by and a nephew "the legacy which I have left will of personal property either general and to my sister," share and share alike. Held, pecuniary, or specific. It is of specific article that the word “legacy” will be construed to of personal property or of ascertained and include, not only the money legacy in the definite pecuniary amount which may be will, but the gift of half of the residuary readily valued by the executor or trustee estate. In re Norris' Estate, 66 Atl. 1000, having it in charge. Disston v. McClain, 1001, 217 Pa. 560.

147 Fed. 114, 117, 77 C. C. A. 340. "No particular words are essential to

Personalty or realty create a ‘legacy' or devise; the essential thing is that the intention of the testator

A "legacy” is a gift by will of personal to thereby make the gift from property of property. Harding's Adm'r v. Harding, 116 the estate is shown." A clause of a will S. W. 305, 307, 132 Ky. 133. providing that “the residue of my real es- A "legacy” is defined as "a bequest or tate, after my son H. has been paid what he gift of personal property by last will and has paid for me at various times, I will and testament.” Desloge v. Tucker, 94 S. W. bequeath,” etc., creates a "legacy” to H. 283, 286, 196 Mo. 587 (quoting Black, Law of the amounts paid by him for the tes- Dict.). tator. In re Barclay's Estate, 93 Pac. 1012,

The terms “legacy" and "legatee" have 1014, 152 Cal. 753.

different meanings in the French Code and The right given to a beneficiary by a Civil Law, from what they usually have will to receive a stated share of the net under the English system; but even in the income from the entire residuary estate of United States they may be used to refer to the testator, left in trust until the time fixed a devise of real property. Lindsay V. WII

son, 63 Atl. 566, 570, 103 Md. 252, 2 L. R. Campbell's Estate, 75 Pac. 851, 853, 27 A. (N. S.) 408.

Utah, 361 (citing Page, Wills, $ 2). A "legacy" is a disposition of personal "Legacy and devise" and "legatee and property by will. Under a will creating a devisee" are often used as interchangeable trust, the beneficiary was empowered to dis- phrases in wills and everyday conversation, pose of the property by will and give the and therefore courts would not feel fettered same to various charitable institutions and to any nice construction where the subjectdirected her executors after the payment matter or context shows the words were of numerous bequests, to pay out of the used interchangeably and as of the same residue any inheritance taxes due on any of import. But such popular and loose conthe legacies whether to the state or federal struction is hardly permissible in view of authorities. Held, that the various disposi- the statutory rule of hermeneutics. Desloge tions of the trust estate constituted "leg- v. Tucker, 94 S. W. 283, 286, 196 Mo. 587. acies” and are entitled to have the transfer While the word "devise" is the approtaxes paid out of the residuary estate. Is- priate term to pass title to real estate, and ham v. New York Ass'n for Improving the “bequeath” the term applicable to gifts of Condition of the Poor, 69 N. E. 367, 369, personal property, a strict adherence to 177 N. Y. 218.

technical words is not necessary to give Strictly speaking, the term “legacies" re- effect to a testator's intent, and the fact fers to personal property, but it may be, that the word “devise” is not used does not and often is, used in a more extended sense prevent the title to real estate passing by by persons unacquainted with the precise the use of the word “bequeath.” Mills v. meaning of legal terms, and, when so used, Tompkins, 97 N. Y. Supp. 9, 10, 110 App. may embrace real estate. Russell v. Elden,

Div. 212. 15 Me. 193, 196.

LEGACY TAX Although the words "devise" and "dev- See Inheritance Tax. isee" properly and technically apply only to

A tax on an interest in personal propreal estate, and the words “legacy,” "leg- erty passing by will is a “legacy tax." In atee," "bequest," and "bequeath" only to personal property, they have been made in: Colo. 79, 23 L. R. A. (N. S.) 1207.

re Macky's Estate, 102 Pac. 1075, 1078, 46 terchangeable by Ky. St. 1903, § 467, which provides that "the words 'legatee' and 'dev

The inheritance tax is variously termed isee shall each be held to convey the same "succession tax," "legacy tax," and "probate idea; and the words 'bequeath' and 'devise' duties"; but, whatever it may be termed, it to mean the same thing; and the words is not a tax upon property, but upon the bequest' and 'legacy'shall each be held to right of succession thereto. State ex rel. mean the same thing and to embrace and Foot v. Bazille, 106 N. W. 93, 96, 97 Minn. include either real or personal property or 11, 6 L. R. A. (N. S.) 732, 7 Ann. Cas. 1056. both." Roberts v. Chenoweth, 112 S. W. 625, A tax may be laid upon property im627.

mediately after it has devolved upon any In common acceptation, "bequest” and person by will or inheritance so as to be not “legacy” are synonymous terms, but "be easily distinguishable from a form of taxaqueath" is the term generally by which a tion sometimes called “legacy tax." Appeal gift of personalty is made in a will, and a of Hopkins, 60 Atl. 657, 659, 77 Conn. 644. legacy is the money or personal property The tax variously called an "inheritance bequeathed. The words "devise," "bequest,” tax," a "legacy tax," a "transfer tax," and a and "legacy” are not infrequently used in "succession tax," is a "burden imposed by wills in a sense different from their strict government on all gifts, legacies, and succeslegal meaning. It is stated, in a recent sions, whether of real or personal property or work on wills, that: “Of the verbs used to both, or any interest therein, passing to cerdenote the act of making a will, "devise' tain persons (other than those specially exis properly used of realty, and 'bequeath' cepted), by will, by intestate law, or by deed of personalty. Of the nouns used to name or assignment made inter vivos, intended to the various forms of gift, "devise' is used take effect at or after the death of the granof a gift of realty. 'Legacy' is used of a tor.” In re Morris' Estate, 50 S. E. 682, 138 gift of personalty in general. None of these N. C. 259 (quoting and adopting definition in words have so fixed a legal meaning, how- Dos Passos [2d Ed.] 2). ever, that a gift will fail because testator

The words "an act to tax

legadoes not use the words descriptive of the gift cies," in the title of Act May 15, 1906 (P. L. or the act of giving with technical accuracy. p. 432) do not express that the object of the A devise is often miscalled a 'bequest,' or act, so far as it relates to legacies, is the 'bequest' is often used to include both imposition of a tax upon the transfer of proprealty and personalty, or is used of a gift of erty which is the subject of a bequest, and money alone. So the verb 'devise' is often as Const. art. 4, § 7, par. 4, requires that the used to refer to personalty alone." In re object of every law shall be expressed in the

title thereof, the statute is unconstitutional | LEGAL CAPACITY
so far as it seeks to tax the transfer of prop- See, also, Legal Disability.
erty which is the subject of a bequest. Dix-
on v. Russell, 76 Atl. 982, 983, 79 N. J. Law,

The "capacity to sue” is the right to 490.

come into court, and differs from a "cause of action," which is the right to relief in

court. Howell v. Iola Portland Cement Co., LEGAL

121 Pac. 346, 347, 86 Kan. 450. See, also, Lawful.

“Incapacity to sue exists where there The term “legal" means that which is ac- is some legal disability, such as infancy, or cording to law. Vaughn v. National Council, lunacy, or a want of title in the plaintiff to Junior Order United American Mechanics, the character in which he sues.” That plain117 S. W. 115, 116, 136 Mo. App. 362.

tiff was appointed administrator as alleged,

accepted the office, and qualified therefor, “Legal” is defined as according to the and letters of administration de bonis non principle of law; according to the method are issued to him, and the validity of his aprequired by statute; by means of judicial pointment was not questioned, gives him "caproceedings. In re Folwell's Estate, 62 Atl. pacity to sue,” though he may not be the 414, 415, 68 N. J. Eq. 728, 2 L. R. A. (N. S.) real party in interest, and though the admit1193.

ted facts may not authorize a recovery by Lawful, adequate, and reasonable, syn- him. Homans v. New York Life Ins. Co., 106 onymous

N. Y. Supp. 929, 930, 55 Misc. Rep. 574 (quot“ 'Legal,' 'lawful,' 'adequate,' and 'rea- ing and adopting Ward v. Petrie, 51 N. E. sonable,' when used as adjectives qualify- 1002, 157 N. Y. 301, 68 Am. St. Rep. 790). ing 'provocation,' are synonymous, and, as “Want of legal capacity,” within the a general rule, with few exceptions, it takes meaning of Rev. St. 1898, § 2649, specifying an assault or personal violence to constitute the grounds for demurrer to a complaint, rethis provocation." State V. McKenzie, 76 fers to personal disability, such as infancy, S. W. 1015, 1019, 177 Mo. 699 (quoting with idiocy, coverture, and the like, or to want approval from State v. Bulling, 15 S. W. 367, of title to the character in wbich the plaintiff 16 S. W. 830, 105 Mo. 204); State v. Heath, sues; a defect going to the cause of action 121 S. W. 149, 154, 221 Mo. 565 (quoting and itself as regards the plaintiff. One showing adopting definition in State v. Bulling, 15 S. that in no event, under no circumstances, and W. 367, 16 S. W. 830, 105 Mo. 204).

in no capacity does plaintiff own or repre

sent the cause of action sought to be enforced, LEGAL ADVICE AND SERVICES

does not fall within the statute. McKenney The services of an attorney for an adv. Minahan, 97 N. W. 489, 491, 119 Wis. 651. ministratrix, consisting of giving her advice, drawing leases and other legal instruments,

Under the express provisions of Rev. St. ejecting nonpaying tenants, collecting doubt- 1899, $ 3535, it is only when the plaintiff has ful demands due the estate, discovering as

no legal capacity to sue that a demurrer will sets, and in investigating and adjusting dis- lie on the ground that he has no capacity to puted claims, are such as the estate is liable sue; the words “legal capacity to sue” refor, under Rev. St. 1899, § 223, providing for ferring to infancy, want of authority, or any allowances for “legal advice and services.” personal disability to maintain the action. Hill v. Evans, 91 S. W. 1022, 1024, 114 Mo. Littleton v. Burgess, 91 Pac. 832, 836, 16 App. 715.

Wyo. 58, 16 L. R. A. (N. S.) 49.

A demurrer on the ground of want of LEGAL AND SUFFICIENT FENCE

"legal capacity to sue" must relate to some The phrase "legal and sufficient fence,” legal disability on the part of the plaintiff as used in Rev. St. 1883, c. 51, 88 36, 37, re- to prosecute and maintain his action. This quiring a railroad company to erect and disability must be “such as infancy, covermaintain along the line of its road a legal ture, idiocy, and the like, and not the absence and sufficient fence, means a fence sufficient of facts sufficient to constitute a cause of to restraip and exclude any of the ordinary action." Pratt v. Northern Pac. Exp. Co., 90 domestic animals from straying on that part Pac, 341, 342, 13 Idaho, 373, 10 L. R. A. (N. of its track which passes through and is s.) 499, 121 Am. St. Rep. 268 (quoting and contiguous to the inclosure where such ani- adopting definition in Pomeroy Code Rememals are pastured or kept; and a fence abut- dies [4th Ed.] p. 180). ting a railroad, four feet in height and other

LEGAL CAUSE wise complying with the statute, and that will restrain horses, cows, and oxen, but will not

"Legal cause" is necessarily the deducrestrain sheep, is not a legal and sufficient tion from some act, event, or circumstance. fence. Cotton v. Wiscasset, W. & F. R. Co., Wells, Fargo & Co. v. McCarthy, 90 Pac. 203, 57 Atl. 785, 786, 98 Me. 511.

206, 5 Cal. App. 301 (citing Marsh v. Su

perior Court, 26 Pac. 962, 88 Cal. 596). LEGAL AVOIDANCE

"Legal cause," as used in an instruction See Matter of Legal Avoidance.

in an action for abuse of process author

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