« SebelumnyaLanjutkan »
and she stated that the purse looked like tain matters for the purpose of some given her husband's and took the same, telling the inquiry. They may be grounded on the genfinder that if it did not belong to her hus- eral experience or probability of any kind, band she would return it, and afterwards or merely on policy and convenience. On possession was given to him on his claim of whatever basis they rest, they operate in ownership, when in fact it belonged to an- advance of argument or evidence, or irreother, the "legal possession" remained in spective of it, by taking something for grantthe finder, and defendant's claim theretoed; by assuming its existence." And on constituted larceny. Williams v. State, 75 page 337 this language occurs: “While it is N. B. 875, 877, 165 Ind. 472, 2 L. R. A. (N. obvious, then, that a presumption-i. e., the S.) 248 (citing Smith v. People, 53 N. Y. 111, assumption, intendment, taking for granted 13 Am. Rep. 474; Bish. New Cr. Law, $ 824)
.-which we call by that name, aecomplishes, To be "legal," possession taken by a
for the moment at any rate, the work of mortgagee must have been taken in good reasoning and evidence it should be remarkfaith, free from fraud or wrong, and with ed, as I have said before, that neither this out violation of any contract relation with result, nor the rule which requires it, conthe mortgagor. Jaggar v. Plunkett, 106 Pac. stitutes in itself either evidence or reasoning. 280, 281, 81 Kan. 565, 25 L. R. A. (N. S.) 935. This might seem too plain to require men
tion if it were not for the loose phraseology The term "legal possessor," as used in in which courts sometimes charge the jury, Civ. Code Cal. § 3052, providing that a per- leaving to it in a lump 'all the evidence and son who makes, alters, or repairs any arti- the presumptions' as if they were capable of cle of personal property at the request of being weighed together as one mass of prothe owner or legal possessor of the property bative matter." If there is a legal presumphas a lien upon the same for his reasonable tion that the ordinary man performs his ducharges, means one who has the right by ty and is not negligent, it is no more comvirtue of his possession to originally con- petent as evidence to prove the fact in a tract with reference to the manufacture, al particular case, in the absence of other proof, teration, or repair thereof, such as, for ex
than are other rules of law, including the ample, a lessee or pledgee of the property; presumption of innocence of criminal cases. some one having a possession coupled with a Wright' v. Boston & M. R. Co., 65 Atl. 687, right of property so that he can contract 691, 74 N. H. 128, 8 L. R. A. (N. S.) 832, 124 with reference to it respecting any of the Am. St. Rep. 949. matters enumerated in the section. Where defendants engaged another to peel tanbark A "legal presumption" is one which the from trees on their land and deliver it at a law will recognize. Thus where testator recertain place, and the latter hired plaintiffs tained custody of his will or had ready acto do the work, and no contractual relation-cess to it, and it could not be found after ship existed between defendants and plain- his death, a "legal presumption” would be tiffs, plaintiffs were not entitled to a lien raised that the will and codicil were destroyfor their wages on bark peeled by them re-ed by him animo revocandi. Hutson v. Hartmaining on defendants' land. Quist v. Sand- ley, 74 N. E. 197, 199, 200, 72 Ohio St. 262. man, 99 Pac. 204, 209, 154 Cal. 748.
In an action against a physician for
malpractice, there is no presumption of the LEGAL PRESUMPTION
physician's negligence, and the burden of “The French Civil Code, calls all ‘pre showing it is upon plaintiff. A true “legal sumptions' consequences that the law or presumption" is in the nature of evidence, the judge draws from a known fact to an and is to be weighed as such. The rules unknown fact, and a legal presumption' one which impose the burden of proof upon certhat a special law applies to certain facts. tain parties, when designated as presumpCachard's Translation, arts. 1349, 1350.” In tions, are dry presumptions, having only a re Cowdry's Will, 60 Atl. 141, 142, 77 Vt. 359, technical existence, and barren of all pro3 Ann. Cas. 70.
bative character when the case goes to the As said by Doe, J., in Lisbon v. Lyman, jury on conflicting evidence. Sheldon v. 49 N. H. 553, 563: “A ‘legal presumption' is Wright, 67 Atl. 807, 814, 815, 80 Vt. 298. not evidence. In civil cases it is the finding of a fact or the decision of a point, when LEGAL PROCEEDINGS there is no testimony, and no inference of
Expenses of legal proceedings, see Exfact from the absence of testimony, on the
penses. subject or when the evidence is balanced. And often the fact is also found, or the de
Attachment proceedings are “legal procision made, by the rule of law which im-ceedings" within Bankruptcy Act July 1, poses the burden of proof on the party hav- 1898, c. 541, $ 3a (3), 30 Stat. 546, which ing the affirmative.” In his Treatise on Evi- makes it an act of bankruptcy for an insolvdence, Prof. Thayer says (page 314): "Pre-ent person to permit a creditor to obtain a sumptions are aids to reasoning and argu- preference through legal proceedings. In ro mentation, which assume the truth of cer- I Putman, 193 Fed. 464, 473.
A landlord within four months before, "legal process." Runkle v. Citizens' Ins. Co., the filing of a petition in bankruptcy may 6 Fed. 143, 145. levy his distress and thereby acquire a lien which a subsequent bankruptcy adjudication
LEGAL RATE would not render void or voidable, the lien
See Contract Rate. thereby secured not being under the law of The expression "legal rate," used in Rev. Maryland a lien secured “by legal proceed. St. 1899, 1092, requiring railroads to furings" within Bankruptcy Act July 1, 1898, c. nish double-deck cars for the shipment of 541, § 67c, 30 Stat. 564. In re Potee Brick sheep, and declaring that it shall not be lawCo. of Baltimore City, 179 Fed. 525, 530. ful for any railroad to charge for transpor
All goods on demised premises, by the tation of a double-deck car more than the lecommon law, or the statutory law of Penn- gal rate of freight allowed for the shipment sylvania, may be considered as under a quasi of stock, means that, as a maximum rate has pledge to the landlord, which gives superiori- been fixed for stock of all kinds, the charge ty to the specific lien acquired by a dis- for a double-deck car of sheep should not extraint. Such a lien is not one obtained ceed that rate. Wynn v. Wabash R. Co., 86 through legal proceedings within Bankr. Act. S. W. 562, 564, 111 Mo. App. 642. July 1, 1898, c. 541, $ 67f, 30 Stat. 565, and is not divested by the bankruptcy of the ten
LEGAL RELATION ant within four months thereafter, and the
"Legal relation,” as used in the rule same rule applies where the bankrupt was that the measure of a succession tax under a subtenant, admitted to the premises by the a will is the “legal relation” borne by the lessee without the landlord's consent. In re legatee to the testator, is the relation estabWest Side Paper Co., 162 Fed. 110, 112, 89 lished by the law, and, while it usually folC. C. A. 110, 15 Ann. Cas. 384.
lows the natural relation, it does not in all The general lien of a landlord for rent, 993, 187 N. Y. 253.
In re Cook's Estate, 79 N. E. 991, given by Code Ga. $ 2795, to "date from the time of the levy of a distress warrant to en- LEGAL REMEDY force the same," is not created by judgment,
A “personal remedy" is where the injurnor obtained through legal proceedings, with-ed party seeks redress of the party who inin the meaning of the bankrupt act of July Aicted the wrong and thus obtains a remedy 1, 1898 (30 Stat. 565, c. 541), $ 67f, and is for the wrong committed, while a “legal remtherefore not defeated by the provisions of edy" is where the injured party seeks bis that section, although the levy was made remedy by and through the intervention of within four months of the filing of the pe- the courts. People ex rel. Stidger v. Horan, tition in bankruptcy against the tenant.
86 Pac. 263, 34 Colo. 336, 114 Am. St. Rep. Henderson v. Mayer, 32 Sup. Ct. 699, 700, 225
163. U. S. 631, 56 L. Ed. 1233.
A lien on a bankrupt's assets secured by LEGAL REPRESENTATIVE filing a creditor's bill within four months of The phrase "legal representatives" usuthe filing of a bankruptcy petition is one se- ally means executors or administrators, but cured "by legal proceedings," which by Bank- it cannot, of course, mean executors and adruptcy Act July 1, 1898, c. 541, $ 67C, 30 Stat. ministrators only, in whatever instrument it 541, is avoided by the adjudication. In re may appear, and with reference to all the Potee Brick Co. of Baltimore City, 179 Fed. different subject-matters treated of in the 525, 530.
multitude of varying instruments, and no
matter what the plain purpose of the maker LEGAL PROCESS
of the instrument using the phrase may be in The term "legal process” means a pro- using it. It may, in various circumstances, cess fair on its face, and one charged with mean executors, administrators, heirs, legaresisting an officer in the levying of an tees, assignees, and devisees, even while legaexecution issued by a justice of peace on tees or devisees are strangers; in short, it a judgment rendered by him may show that may mean any person or corporation taking the judgment was void and that the officer the beneficial interest in property, real or had knowledge thereof, though the state to personal. Allen v. Alliance Trust Co., 36 make out a case need not show that the exe- South. 285, 286, 84 Miss. 319. cution had behind it a legal judgment. State The terms "legal representatives," "perV. Knapf, 96 Pac. 1076, 50 Wash. 229, 21 L. sonal representatives,” etc., are often used in R. A. (N. S.) 66.
statutes and instruments of writing so as to The phrase "legal process” means valid include all persons who stand in place or replegal process. Where a policy provided that, resent the interests of another, either by bis if any change take place in the possession of act or by operation of law. In re Harton's the property by legal process, it shall avoid Estate, 62 Atl. 1058, 1059, 213 Pa. 499, 4 L. the policy, an illegal assessment and a sel- R. A. (N. S.) 939. zure and sale of the insured property there- Testator, after bequeathing one half of under were not a change in the possession by his estate to his wife, directed that tħe remaining hall be distributed among his legal, otherwise to the legal representatives or asheirs and legal representatives according to signs of said member. Hall v. Ayers' Guardthe laws of distribution. Held, that the term ian (Ky.) 105 S. W. 911, 913, 914. "legal representatives" was without precise
Where a will provided that any real determinate meaning, and was used merely property of testatrix that had not been disto indicate that testator intended that all posed of by her husband at his death should who would take under the statute of distri-be equally divided between her heirs and lebution were entitled to share under the term gal representatives and his legal representa"legal heirs," and hence did not include chil- tives, one who was executrix of the husband's dren of testator's first cousins who died be will and a devisee thereunder was a "legal fore testator, they not being entitled to dis
representative," of the husband, within the tribution in intestacy, as provided by Gen. will of testatrix. Gruenewald v. Neu, 74 N. St. 1902, § 398. Dickerman v. Alling, 76 Atl. E. 101-103, 215 111. 132. 362, 363, 83 Conn. 342.
The use of the expression, "heirs and leA certificate issued by a fraternal insur- gal representatives" instead of "heirs, execuance association payable to the estate of a tors, and administrators,” may, under some member is payable to his "legal representa-circumstances, raise the presumption that tive” within the by-laws of the association those who are beneficially interested and sucauthorizing certificates to be made payable ceed to the property and rights of the deceto legal representatives of members. Vaugh- dent are intended. Marsh v. Marsh, 137 N. an's Adm’r v. Modern Brotherhood of Amer- w. 1122, 1124, 92 Neb. 189. ica, 149 S. W. 937, 938, 149 Ky. 587.
"The ordinary meaning of the words 'leAs administrators or executors
gal representatives' is 'executors and adminThe phrase "legal representatives” ordi-istrators,' and they are to be given that narily means executors or administrators meaning unless there is something in the will where not qualified by context. An act of
properly construed to show that they should Congress (Act April 28, 1904, c. 1759, 33 Stat. have some other meaning.” Alexander v. Mc436) provided a pension of $1,000 which Peck, 75 N. E. 88, 91, 189 Mass. 34. should be exempt from payment of debts of decedent, to be paid to the legal representa
"Personal representatives" and "legal tives of any railway clerk killed while on representatives” are sometimes used interduty. Held, that the words, “legal represent- changeably, as signifying not only executors atives,” were used in their ordinary sense; or administrators, but also those who legalthe intent being that the money should be ly stand in place of, or represent the interpaid to the administrator to be distributed ests of, another. Lowry v. City of Duluth, according to the laws of the state of dece 101 N. W. 1059, 1060, 94 Minn. 95. dent's domicile, saving the payment of debts. Under a life policy in which the insurer Wolfe v. Wolfe, 134 S. W. 33, 34, 154 Mo. agreed with the "insured, his executors, adApp. 218.
ministrators, and assigns," to pay the amount The phrase "legal representatives," in of the policy to insured's “legal representaits ordinary acceptation, means executors tives,” the amount is payable to insured's exand administrators, though it may mean next ecutors or administrators, and not to his of kin or descendants. Kelsay v. Eaton, 76 next of kin. New York Life Ins. Co. v. KanPac. 770, 772, 45 Or. 70, 106 Am. St. Rep. sas City Nat. Bank, 97 8. W. 195, 196, 121 662.
Mo. App. 479. "The words 'legal representatives'
The words "legal representative" are pre‘personal representatives' have also been used sumed to mean executors and administrators, as designating executors or administrators, and that meaning will be attributed to them and not next of kin, in acts of Congress giv- in any instance, unless by the context or suring actions for wrongs or injuries causing rounding circumstances it be shown that the death.” Briggs v. Walker, 19 Sup. Ct. 1, 3, words were not so used, but denote some oth171 U. S. 466, 43 L. Ed. 243.
er and different idea. Rockland-Rockport The words “legal representatives” have Lime Co. v. Leary, 97 N. E. 43, 47, 203 N. Y. a well-recognized meaning in law that are 469, Ann. Cas. 1913B, 62. equivalent to executor or administrator, and The term "legal representatives" of a are technical words, and when used in any deceased person will mean the executor or legal instrument, and there is nothing in the administrator if the subject-matter is percontext or otherwise to explain their mean-sonalty, and heirs or devisees if it is realty, ing, they should be understood in their tech- within the rule that all the necessary parnical sense. Page v. Metropolitan Life Ins. I ties to a judgment sought to be reviewed Co., 135 S. W. 911, 912, 98 Ark. 340.
must be the parties to the bill of review, and, It may be conceded that the words "le- if they are dead, their "legal representagal representatives” frequently mean execu- tives" must be parties. State Fair Ass'n v. tors and administrators as used in a policy Terry, 85 S. W. 87, 89, 74 Ark. 149 (citing of insurance payable to insured's wife and Cochran v. Cochran, 17 Atl. 981, 127 Pa. 486; children if living at the time of his death, Ralston v. Sharon, 51 Fed. 702; Johnson v.
Van Epps, 110 II. 557; Turner v. Berry, 8 and heirs," was used with the idea of using IH. 541).
words broad enough in their significance to In wills and other written instruments,
include all persons having claims against the the words "legal representatives” are fre
city on account of the death, and hence the quently used to mean the persons who suc
claim was sufficient as a basis for an action ceed beneficially to the property or interest
for the benefit of the widow under the statof the deceased. Whether in any given case
ute. Moyer v. City of Oshkosh, 139 N. W. they are so used, or the executor or adminis
378, 380, 151 Wis. 586 (citing 4 Words and
Phrases, pp. 3241-3264; 5 Words and Phrastrator is intended, must be determined from a consideration of all of the provisions of the will. Marsh v. Marsh, 137 N. W. 1122, I Gen. St. 1906, § 3147, provides that, 1124, 92 Neb. 189.
where the death of a minor child is caused Within an order of a probate court that
by the wrongful act or negligence of a cormoney be paid to a legatee of testatrix or his poration
mitor his poration or its agents, the father, as the "legal representative," his executor or ad
legal representative of such minor child, may ministrator, and not his heirs, is such repre
sue for the loss of services of the child and sentative, as that court could not properly
for the mental pain and suffering of the undertake to distribute his estate as part of
parent or parents. Held, that the damages the settlement of testatrix's estate; the as
authorized are personal to the parents, and certainment of his legal heirs being, under
an action therefor should be by the parent Gen. St. 1902, § 394, for that court in the
personally, and an administrator of the misettlement of his estate. Cooley v. Pigott,
nor child has no interest in or right to such
recovery; the term "legal representative" 80 Atl. 92, 93, 84 Conn. 323.
having reference to the parties benefited by The words "legal representatives," in a the
the rights conferred, and not to the adminiscertificate issued by a foreign corporation
trator or executor of a decedent. Seaboard authorized to issue benefit certificates, which
Air Line Ry. v. Moseley, 53 South. 718, 719, recites that the amount thereof shall be paid
60 Fla. 186. to "legal representatives, related to the mem
Testator devised the residue of his esber as ....." do not include any of the persons specified in Rev. St. 1909, § 7109, pro
tate to trustees, and directed that, if his
wife survived him, they should set apart a viding that death benefits shall be paid to the families, heirs, blood relatives, affianced
third thereof and pay the income to her for
life, and at her death the fund should be husband or wife of, or to persons dependent
divided into three parts, one of which should on, the member, but mean the executor or
be paid to his son, if surviving testator's administrator of the member, and the liability of the corporation is that of a life in
wife, otherwise to his issue living at the
time of her death, and in default of issue to surance company, under section 6945, making
his legal representatives. He directed the the defense of suicide unavailable to life in
trustees, if the son survived bim, to set apart surance companies. Ordelheide v. Modern Brotherhood of America, 139 S. W. 269, 270,
and invest a specified sum and pay the in
come thereof to the son for life, and at his 158 Mo. App. 677.
death to pay the principal to his issue, and The words "representative" and "legal in default of issue to his legal representarepresentative" of a person do not necessarily tives. Held, that the words "legal repreexclude the administrator or executor, but sentatives” meant executors and administrasuch words employed in a policy of a benefit tors, so that the son took one-third of the association in view of the purposes of the trust fund created for the use of the widow association to benefit the family and heirs if he survived her, and the right to have it of deceased members were not intended to administered as a part of his estate by his include the administrator of the member own executors or administrators, if he died referred to in a policy. Tucker v. Knights before the widow without issue, and the of Pythias of North and South America, 68 trust fund created for his own use was also S. E. 796, 797, 135 Ga. 56.
to be turned over to his executors or adminA claim against a city for the instanta. istrators, if he died without issue. Alexneous death of plaintiff's intestate, through ander v. McPeck, 75 N. E. 88, 91, 189 Mass. the city's negligence, stated that the claim 34. was for damages sustained by his estate, Where two beneficiary certificates were legal representatives, and heirs, and that his payable to testator's mother, who died beestate, legal representatives, and heirs claim- fore he did, and provided that in such case ed a specified sum as damages. Held, that they should be payable to the "legal reprethe words "legal representatives" were not sentatives' of the member, and the articles used in their strictly technical sense as exec- of incorporation declared the object of the utors or administrators, nor was the word association to be the equitable distribution "heir" used in its primary and technical of the fund among the “families or beneficisense as one who, by reason of birth in law. | aries" of deceased members, and declared ful wedlock, inherits real property, but that that each certificate entitled “the heirs or the expression, "estate, legal representatives, legal representatives or designated benefici.
aries" to $2,000, and testator's will gave each | Hunt v. Remsberg, 112 Pac. 590, 591, 83 Kan. of his two sisters such of his property as 665, 32 L. R. A. (N. S.) 246, 21 Ann. Cas. 1267. they might have in charge at his death, and all the “residue of which I may die seised,
Agent real, personal and mixed,” absolutely to his
A provision of an insurance policy that affianced, it was held that, while the words the term insured, as used therein, shall in"legal representatives” might sometimes be clude his "legal representatives," does not interpreted as “legal heirs,” here they must include his agents. Boston Marine Ins. Co. be given their usual meaning and carried the v. Scales, 49 S. W. 743, 745, 101 Tenn. 628. certificates to the executor, and they went to
Assignees, purchasers, and grantees the affianced by the residuary clause. Walk
The words "legal representative," er v. Peters, 124 S. W. 35, 36, 139 Mo. App. I used in a statute relating to settlement on 681.
public lands, included not only heirs, execuThe word "heirs" properly means those tors, or administrators of a settler, but his on whom the law casts the real estate im- legal assigns. Lapish v. Wells, 6 Greenl. mediately on the death of the ancestor, and (6 Me.) 175, 185. the words "legal representatives" mean exec
An assignment of a patent to two perutors and administrators. These words are
sons named, “and to their legal representato be construed unless from the context of tives,” to be held and enjoyed by them for a will it may be seen that testator intended their own use and behoof “and for the use to use them with another meaning. Where and behoof of their legal representatives,” a share of an estate consisting of both real is not a mere personal license to the persons estate and personalty was to go to the “heirs named, but the words “legal representatives" or legal representatives” of a deceased lega- mean "assigns” as well as "executors and adtee, the “heirs,” according to the plain mean- ministrators.” Hamilton v. Kingsburg, 11 ing of the term, would take the real estate. Fed. Cas. 346, 347, 15 Blatchf. 64. Where a share of an estate consisting of both real estate and personalty was to go to
On the death of a party to an action inthe "heirs" or "legal representatives” of a volving real estate, the heir of the deceased deceased legatee, the personalty would go party must be brought in as successor, and to the next of kin, since to construe “legal hence a contention that the provisions of the representatives” in its primary meaning Code of Public General Laws, providing that would make the personalty subject to the if a party to a suit in equity shall die before testamentary disposition and the debts of final decree, leaving heirs at law or repre the deceased legatee, while the real estate sentatives who should be made parties, it was not. Howell v. Gifford, 53 Atl. 1074, shall not be necessary to file an amended 1077, 64 N. J. Eq. 180 (citing Williams' Ex'rs, bill, do not contemplate that such proceed1013).
ings should be revived by summoning in the
heir, but that they mean, by using the term Testator bequeathed to his wife the “legal representative,” that the purchaser, balance due on a policy of insurance issued and none other, in case of a sale of the land by a company which was neither a fraternal by the fraudulent vendee, should be brought nor a mutual benefit association. The policy in, is untenable. Sinclair v. Auxiliary Realprovided for payment to the beneficiary, ty Co., 57 Atl. 664, 668, 99 Md. 223. his "legal representatives" or assigns. The application directed
The term "legal representative," as used that the insurance
in a land patent, embraced a representative should be paid “to whom I may direct in my will.” Held, that the title vested in the by contract, a grantee, or assignee, as well widow, after the satisfaction of a debt to as a representative by operation of law. The secure which it had been assigned, as execu- purchaser of a land claim sold by a Louisi. tris, and not as a beneficiary under the ana parish court in administration proceedpolicy. Leonard v. Harney, 66°N. E. 2, 173 ings is a "legal representative" of the claim
ant, within the meaning of Act Cong. June N. Y. 352.
2, 1858, requiring the surveyor general of the A fraternal insurance association issued district in which a land claimed is located, a certificate of membership to a man who on satisfactory proof that such claim had named his wife as beneficiary. It provided been confirmed and is unsatisfied, to issue to that if his wife died before he did, he might the claimant or his "legal representative" a name another beneficiary, but if he failed to certificate of location of a quantity of land do so, the insurance should be paid to his equal to that so confirmed and unsatisfied. legal representative. The wife died; he Bradley v. Dells Lumber Co., 81 N. W. 394, died later; an administrator was appointed | 396, 105 Wis. 245. to whom the association paid the money. The
Code Civ. Proc. Cal. 473, provides that insured left three children who sued the ad- an assignee or grantee is a "legal representaministrator to recover the money. Held, tive” of the assignor or grantor in regard to that the administrator was the legal repre- the things assigned or granted. Abb. Law sentative of the deceased within the meaning Dictionary says that “to represent a person" of that term and was entitled to the money. is to stand in his place, to act his part, ex