Gambar halaman

ercise his right, or take his share. Brown v. , etc., unless called by the opposite party, and Massey, 76 Pac. 226, 228, 13 Okl. 670.

providing that the provision shall extend to While in common parlance the expres

all actions by or against the heirs or "legal sion “legal representatives” means adminis- representatives” of a decedent arising out of trators or executors, legally it is not always transactions with the decedent, the reference so exclusive. Under a lease giving the lessor to heirs and "legal representatives” does not the right to cancel the lease and providing include devisees and legatees, and in an aethat the covenant and agreements contained tion to cancel a deed given to one since detherein were binding on the parties and their ceased, where it appeared that by a settle legal representatives, a grantee of the lessor ment among the defendants certain churches had a right to cancel the lease. Adler v.

were entitled to an interest in the estate as Lowenstein, 102 N. Y. Supp. 492, 493, 52 legatees and other defendants were entitled Misc. Rep. 556 (citing Mutual Life Ins. Co. v. to an interest as heirs, plaintiff's testimony Armstrong, 6 Sup. Ct. 877, 879, 117 U. S. 591, that the deed to the decedent had been given 597, 29 L. Ed. 999; Warnecke v. Lembca, 71 to secure a debt which had been released by Ill. 91, 93, 12 Am. Rep. 85).

decedent's will was admissible, as against the

churches as legatees, but not as against the As assigns

other defendants as heirs. Emerson v. Scott, See Assigns.

87 S. W. 369, 370, 39 Tex. Civ. App. 65. Descendants

The term "legal representatives” of a de

ceased person will mean the executor or adWhile the term "legal representatives” ministrator if the subject matter is personin its ordinary acceptation means executors alty, and heirs or devisees if it is realty, and administrators, it may also mean de within the rule that all the necessary parscendants. Kelsay v. Eaton, 76 Pac. 770, 772, ties to a judgment sought to be reviewed 45 Or. 70, 106 Am. St. Rep. 662.

must be the parties to the bill of review, and, Under a will giving legacies to relatives if they are dead, their “legal representatives” who shall be living or whose legal represent- , must be parties. State Fair Ass’n v. Terry, atives shall be living at a certain time, the 85 S. W. 87, 89, 74 Ark. 149 (citing Cochran words "legal representatives” mean children v. Cocoran, 17 Atl. 981, 127 Pa. 486; Ralston or lineal descendants. Miller v. Metcalf, 58 v. Sharon, 51 Fed. 702; Johnson v. Van Epps, Atl. 743, 745, 77 Conn. 176.

110 111. 557; Turner v. Berry, 8 Ill. 541). Testator created a, testamentary trust,

Under Laws 1885, p. 698, c. 405, $ 6, proand provided that the income thereof should viding for the delivery of a tax deed to the be applied to the use of daughters named purchaser, his "legal representatives" or asand a son named, and declared that on the signs, a deed is properly delivered to the death of the daughters, respectively, the sole devisee of the purchaser's estate, the principal held in trust for the daughter dy- quoted term not being necessarily confined to ing should be transferred to the children of executors, administrators, etc. Rosenblum v. the deceased daughter, and, in default of chil. Eisenberg, 108 N. Y. Supp. 350, 353, 123 App. dren, the property should go to the other chil- Div. 896 (citing Griswold v. Sawyer, 26 N. E. dren named in the will and to their legal rep- 464, 125 N. Y. 411; Rice's Lessee v. White, 8 resentatives. Held, that the words “legal rep- Ohio, 216; 2 Blackw. Tax Titles, § 963, and resentatives" meant lineal descendants, note 1, citing cases; Black, Tax Titles, p. though the daughters were illegitimate chil. 312; Morehouse v. Phelps, 18 III. 472; Mutudren of testator. Dwight v. Gibb, 129 N. Y. al Life Ins. Co. v. Armstrong, 6 Sup. Ct. 877, Supp. 961, 964, 145 App. Div. 223.

117 U. S. 591, 29 L. Ed. 997; Duncan's Les

see v. Walker (Pa.) 1 Yeates, 213; CommonDevisees and legatees

wealth ex rel. Kreber v. Bryan (Pa.) 6 Serg. The words "legal representatives," as & R. 81; Wamsley v. Crook, 3 Neb. 344; used in a contract for preferential rates be- Lee v. Dill [N. Y.) 39 Barb. 521). tween a railroad company and a shipper, which provided that the railroad agreed to

Heirs, next of kin, and distributees transfer logs for such shipper and his as

Heirs as including, see Heirs. signs at a prescribed rate, and defined the

Lineal heir as including, see Lineal word "assigns" às limited to the shipper's

Heirs. legal representatives in case of death, to his While the term "legal representatives". successors in the timber and lumber business ordinarily means executors or administrain case of his retirement, and to any mill tors, it may be shown to mean next of kin. that he might build or purchase, does not in- Wolfe v. Wolfe, 134 S. W. 33, 34, 154 Mo. clude a legatee of the shipper's lumber busi. App. 218; Kelsay v. Eaton, 76 Pac. 770, 772, ness under his will. Sullivan v. Louisville 45 Or. 70, 106 Am. St. Rep. 662. & N. R. Co., 35 South. 694, 697, 138 Ala. 650.

P. L. 1898, p. 778, $ 168, provides that In Rev. Civ. St. art. 2248, providing that the orphans' court shall make distribution in actions against executors, etc., neither par- “to the next of kindred to the intestate in ty shall be allowed to testify against the oth equal degrees, or legally representing their er as to any transaction with the testator, stocks," and section 169 provides that, “in case there be no child, then to the next of to mean heirs and next of kin, and not exkindred of equal degree of or unto the intes-ecutors and administrators." Davidson v. tate and their legal representatives as afore. Jones, 98 N. Y. Supp. 265, 266, 112 App. Div. said." Held that the words "legal represen- 254 (citing Griswold v. Sawyer, 26 N. E. 464, tatives," as used in section 169, mean legal 125 N. Y. 411). representatives of their stocks, and, having found a common ancestor of the intestate 112 App. Div. 255, it was held that though

In Davidson v. Jones, 98 N. Y. Supp. 265, and the living next of kin, the logical conclusion is that the nearest class of kinsman vising property to the testator's wife and on

the words "legal representative" in a will dedescending from that ancestor, together from her decease, to her children, or to their legal the stock to which representation is limited. Smith v. McDonald, 61 Atl. 453, 454, 69 N. J. representative, refer technically to executors

or administrators, yet they may also mean Eq. 765.

heirs at law or next of kin, and where used The term “legal representatives” of a de- in reference to real estate, they mean heirs ceased person will mean the executor or of testator's deceased children. In re Alliadministrator if the subject-matter is per- son, 102 N. Y. Supp. 887, 895, 53 Misc. Rep. sonalty, and heirs or devisees if it is realty, 222. within the rule that all the necessary par. Where a testator makes a bequest to his ties to a judgment sought to be reviewed sister, or, in case of her death before his must be the parties to the bill of review, and, own, to her heirs and legal representatives, if they are dead, their "legal representatives” the expression “legal representatives” is must be parties. State Fair Ass'n v. Terry, equivalent to "heirs,” and may be regarded as 85 S. W. 87, 89, 74 Ark. 149 (citing Cochran mere surplusage. In re Riesenberg's Esv. Cochran, 17 Atl. 981, 127 Pa. 486; Ralston tate, 90 S. W. 1170, 1171, 116 Mo. App. 308. v. Sharon, 51 Fed. 702; Johnson v. Van Epps, 110 Ili. 557; Turner v. Berry, 8 Ill. 541).

Where there was nothing in the contract

of insurance nor in any statute or provision While it may be conceded that the words in the charter of the company to indicate “legal representatives” mean executors and that the words "legal representatives” were administrators, as used in Ky. St. 1904, 8 used in their broader sense to mean heirs at 655, providing that when a policy of insur- law, and the policy was an endowment payaance is effected on one's own life, in favor ble to the insured if he was alive at the end of some person other than himself, having an of 15 years, and to his legal representative insurable interest therein, the lawful benefi- if he died before that time, his heirs had no ciary, other than himself or his “legal repre- vested interest in the policy by the use of sentatives," shall be entitled to its proceeds such phrase, which would prevent the insured as against creditors and representatives of from assigning the policy. Page v. Metropolinsured, yet in an assessment insurance policitan Life Ins. Co., 135 s. W. 911, 912, 98 cy that the amount should go on his death Ark. 340. to his wife (naming her) and his two daughters, if living, otherwise his "legal representa- Gen. St. 1902, $ 398, provides that ancestives" should be entitled to the insurance tral real estate shall be distributed to the in equal parts, the words mean heirs and brothers and sisters, and those who legally distributees. Hall v. Ayer's Guardian (Ky.) represent them, of the blood of the ancestor 105 S. W. 911, 913, 914.

from whom such estate came; that, if there

are none such, then to the children of the That the heirs at law of a lessor, who ancestor, and those who legally represent dies intestate, were the only persons who them; that, if there be none such, then to could execute a good and sufficient deed to the brothers and sisters of the ancestor, and premises leased with an option to the lessee those who legally represent them; and that, to purchase, will not make them the "legal if there be none such, then it shall be divided representative" contemplated by the lease, to in the same manner as other real estate. whom notice of a desire to exercise the op- Held that "legal representatives" means tion was to be given, where, by its terms, the those who inherit property per stirpes as legal representative provided for was not re- the representatives of a deceased ancestor, quired to execute the deed, but only to deliv- in whose place, for the purpose of succession er it or cause it to be delivered. Rockland- to such property, they stand, and so, where Rockport Lime Co. v. Leary, 97 N. E. 43, 47, a son as the sole issue of his father died 203 N. Y. 469, Ann. Cas. 1913B, 62.

without issue, his mother surviving, ances"While technically the words 'legal rep- tral estate which he had inherited from his resentatives' mean administrators or execu- father did not pass to her as the “legal reptors, they may refer to heirs or next of kin. resentative" of the son's children, and hence A 'representative' is one who stands in the on the death of the mother the nearest of place of an owner of real estate as heir, of kin to the son on his father's side were enpersonalty as next of kin. He is one, also, titled to the property as against the nearest who takes by representation, and in wills of kin on his mother's side. In re Tuttle's and settlements the terms ‘representatives' Estate, 59 Atl. 44, 45, 77 Conn. 310 (citing and 'legal representatives' are frequently held 'Ketchum v. Corse, 31 Atl. 486, 65 Conn. 89).

In Const. § 193, the phrase "legal or per- , ecutor, though this is not their only definisonal representatives," embraces not only the tion. They may mean heirs, next of kin, or executor or administrator, but the heirs or descendants, and sometimes assignees or next of kin, as the case may be, and action grantees. The sense in which the term is to for death may be brought by the executor, be understood depends somewhat on the inadministrator, heirs, or next of kin, and the tention of the party using it, and is to be widow, children, and administrator may join gathered, not altogether from its use, but in an action. Yazoo & M. V. R. Co. v. Wash- by the surrounding circumstances." Whether ington, 45 South. 614, 92 Miss. 129.

a trustee in bankruptcy is a "legal represenBy "legal representatives" in a bequest

tative" within Act June 3, 1864, § 30, 13 in trust to pay the income to H., nephew of

Stat. 108, c. 106 (Rev. St. 88 5197, 5198), protestatrix, and, at his death, the principal viding that, where a greater rate of interest .to such of his legal representatives "as are

has been paid a bank than that allowed by related to me by blood," is meant his heirs

that section, the person paying the same or at law. Hartford Trust Co. v. Wolcott, 81

his "legal representative" may recover back Atl. 1057, 85 Conn. 134.

twice the amount of interest so paid, might

admit of doubt. Reed v. American-German A life policy stipulated that the insurer

Nat. Bank, 155 Fed. 233, 236 (citing 6 Words agreed with the "insured, his executors, ad

and Phrases, p. 5358; Griswold v. Sawyer, ministrators and assigns,” to pay the amount

26 N. E. 464, 125 N. Y. 411). of the policy to the insured's “legal representatives" within a specified time after LEGAL RESIDENCE proof of the death of the insured. The in

As residence, see Residence. sured, at the time the policy was issued, was

Inhabitant synonymous, see Inhabitanunmarried. Held, that the words "legal rep

cy--Inhabitant. resentatives" meant the insured's executors

Resident importing, see Resident. or administrators, and not his next of kin. New York Life Ins. Co. v. Kansas City Nat.

The "legal residence" of a corporation, Bank, 97 S. W. 195, 196, 121 Mo. App. 479.

within a statute providing that actions shall

be tried in the county in which defendant reReceiver

sides, etc., is the county designated in its A provision in an insurance policy that, articles of incorporation as the county in where the expression “insured" is used there which its principal office shall be kept. in it shall include the "legal representatives" | Woods Gold Min. Co. v. Royston, 103 Pac. of the insured, does not entitle a receiver to 291, 292, 293, 46 Colo. 191. take the place of the insured in answer to

"There is a broad distinction between a demand by the company that the insured

a legal and actual residence. A legal resishall appear for examination under oath re

dence' (domicile) cannot, in the nature of specting a loss, as required by the policy, al

things, coexist in the same person in two though the receiver was appointed for the

states or countries. He must have a legal express purpose of collecting the insurance;

residence somewhere. He cannot be a costhe insured having absconded and having

mopolitan. The succession to movable propbeen adjudged a bankrupt. Sims v. Union

erty, whether testamentary or in case of inAssur. Soc., 129 Fed. 804, 805, 808.

testacy, except as regulated by statute, the Spouse

jurisdiction of the probate of wills, the right The fact that the statute authorizes to vote, the liability to poll tax, and to miliproof to be made by the heirs or "legal rep-tary duty, and other things, all depend upresentatives" does not give the widow, claim on the party's legal residence or domicile. ing only a dower interest, any title in the For these purposes, he must have a legal resland, since the quoted phrase, in its ordi-idence. The law will, from facts and cirnary acceptation, means executor or admin-cumstances, fix a legal residence for him, unistrator. Braun v. Mathieson, 116 N. W. less he voluntarily fixes it himself. His le789, 791, 139 Iowa, 409.

gal residence consists of fact and intention. Surviving partner

Both must concur. And when his legal resiUnder the statute prohibiting a party to

dence is once fixed, it requires both fact and

intention to change it. As contradistinguishtestify against the opposite party in actions

ed from his legal residence, he may have by or against the heirs or legal representatives of a decedent arising out of any trans

an actual residence in another state or coun

try. He may abide in the latter without action with such decedent, etc., a surviving

surrendering his legal residence in the forpartner, suing for the benefit of the firm, is

mer, provided he so intends. His legal resnot a "legal representative" of the deceased partner. Shivel & Stewart v. Greer Bros.

idence, for the purposes above indicated, may

be merely ideal, but his actual residence (Tex.) 123 S. W. 207, 208.

must be substantive. He may not actually Trustee in bankruptoy

abide at his legal residence at all, but his ac"The terms 'legal representative' and tual residence must be his abiding place." 'personal representative,' in their commonly Pickering v. Winch, 87 Pac. 763, 766, 48 Or. .accepted sense, mean administrator or ex-'500, 9 L. R. A. (N. S.) 1159 (quoting and

adopting definition in Tipton v. Tipton, 8 $. LEGAL SEPARATION W. 440, 87 Ky. 245; Michael v. Michael, 79 The provision of Code, $ 966, that “legal 8. W. 74, 75, 34 Tex. Civ. App. 630).

separation from bed and board may be grantThe actual residence is not always the ed for drunkenness, cruelty, and desertion," “legal residence" or inhabitancy of a man. read in connection with the other sections of The foreign minister actually resides and the Code relating to divorce, and their index is personally present at the court to which he or head lines, which plainly contemplate and is accredited, but his "legal residence" or in- provide for the two kinds of divorce known habitancy or domicile are in his own country. to the law before the adoption of the Code, Under Code Iowa, 2906, which requires a namely, divorce a vinculo and divorce a menchattel mortgage to be recorded in the coun- sa et thoro, has no application to voluntary ty where the holder of the property resides, deeds of sepa ration, nor does it apply to dia mortgagor may be a resident of a coun- vorce a vinculo, but means that a divorce a. ty, within the meaning of the statute, al mensa et thoro may be granted for the causes though his legal domicile is elsewhere; and mentioned; the prefixing of the adjective "le a mortgage given by a railroad contractor on gal” to the words "separation from bed and property in his possession, in a county where board” being only an inartificial mode of exhe is at work, and in which he actually re pressing the meaning of what would have sides with his family, while engaged in per- been better expressed by the use of the word forming his contract, is properly recorded in "divorce," instead of the term “legal sepsuch county, although his residence there aration." Maschaur V. Maschaur, 23 App. may be only temporary. In re Brannock, 131 D. C. 87, 89. Fed. 819, 822, 823.


“Legal services" are "extraordinary serv

ices" within Rev. St. 1898, § 3929, providing See Mutuality of Legal Right.

that an allowance may be made to adminisA "legal right” is a claim recognizable trators for all extraordinary services. In re and enforceable at law. In re Folwell's Es- Ryan's Estate, 94 N. W. 342, 344, 117 Wis. tate, 62 Atl. 414, 415, 68 N. J. Eq. 728, 2 L. | 480. R. A. (N. S.) 1193.

LEGAL SETTLEMENT By “legal rights" are meant rights which have been firmly established, and are undis- the care of an insane person to a county

Rev. Pol. Code 1903, 88 2810, 2812, charge puted or indisputable. Tacoma R. & Power where he has acquired a "legal settlement," Co. v. Pacific Traction Co., 155 Fed. 259, 261. without defining what shall constitute such

The words “legal right,” within the rule a settlement. Held, that it must be deemed relating to uttering forged writings to the to have been used with the same meaning effect that the writing forged or counter- as in section 2764, relating to poor and indifeited must be apparently such as will de- gent persons, and providing that they acquire prive a person of property, estate, or a "le- a "legal settlement" charging a county with gal right,” evidently mean a right that may their support by a residence therein, for 90 be enforced in a civil action. Commonwealth days which they lose by acquiring a new one v. Tabor (Ky.) 104 S. W. 261, 262.

or by willful absence from the county for A cause of action is inconceivable sep

90 days; it not appearing that a legal suparately from the rights which it invades, and plement was otherwise defined by any stata legal right is inconceivable separately from

ute. In re Bigelow, 96 N. W. 698, 17 S. D. possible infractions of that right. A "legal

331. right" or title in this aspect is the privilege LEGAL SHARE found in law against certain acts or omis. sions on the part of others. Telulah Paper and unqualified by other expressions in a

The words "legal share," standing alone Co. v. Patten Paper Co., 112 N. W. 522, 524, will whereby testator gave to his wife the 132 Wis. 364, 425.

legal share of his real estate and personal The order of deportation of a Chinese property, indicate an intention that she shall person, who has plainly violated the exclu- take one-half of the personal property absosion act, made by a court of the United lutely and the income of one-half of the real States, pursuant to the acts of Congress, Is estate for life, in the absence of any children not made in an ordinary justiciable case, and of the parties, and a will whereby testator does not deal with "legal rights," as that ex- gave to his wife described property for use pression is generally understood. It merely as long as she desired, after which the same involves the pretended claim to remain in should be sold by his executors and become this country of an individual who, against a part of his estate, and whereby he declared settled American policy and against the posi- that the legal share of his real estate and pertive command of our statutes, has surrepti- sonal property should be paid to his wife as tiously and fraudulently obtruded his unac- her share, and whereby he gave a legacy in ceptable presence among our people. Unit- | money and the balance of his estate to ed States v. Fah Chung, 132 Fed. 109, 110. enumerated relatives, and whereby he di

reeted his executors to dispose of all his , per title, but such a title as undisputed will estate within a specified time, used the term sustain an action of ejectment. Aubuchon v. in such sense. In re Dull's Estate, 71 Atl. New York, N. H. & H. R. Co., 122 N. Y. 9, 10, 222 Pa, 208, 128 Am. St. Rep. 796. Supp. 581, 583, 137 App. Div. 834. LEGAL SUBDIVISION

The Supreme Court of Appeals of West "Legal subdivision,” as used in Gen. St. Virginia, referring to a statement in Adams 1901, $ 6339, requiring each "legal subdivision v. Alkire, 20 W. Va. 480, in regard to adof school land to be appraised separately rial whether this color or claim of title be un

verse possession, that “it is entirely immateprior to its being exposed to sale, refers to der a good or bad, a legal or equitable title,” the smallest subdivision under the congressional system of surveying, namely (except say that they “do not think the judge meant where for special reasons lots are platted in to say that an equitable title is color of title. more or less irregular shape as in the case

In his statement he includes both color and of fractional sections), quarter-quarter sec

claim, two distinct things. This is followed tions, or 40-acre tracts. Hopper v. Nation, we think that he meant that the terms 'le

by the terms 'legal title' and 'equitable title.' 96 Pac. 77, 78, 78 Kan. 198.

gal' and 'equitable should be used distribuLEGAL SURVEY

tively; 'legal referring to color of title and Act March 30, 1872 (St. 1871-72, p. 766, 'equitable' to claim." Lewis v. Yates, 59 S. c. 531), for the survey of a line dividing par- E. 1073, 1075, 62 W. Va. 575. ticular counties, declaring that the line so

LEGAL VOTER surveyed should be conclusive until the Legis. loture should change it or order another sur

Nonregistered electors who may exercise vey, did not repeal Pol. Code, 88 3969-3972, the right to vote at an election by the proproviding that any county lines not adequate- duction of the proof required by L. 0. L. ly marked should be run and marked by the 3463, prescribing the manner in which nonSurveyor General; and hence a survey under registered electors may establish their right the special act was a "legal survey." Trini- to vote, are “legal voters" within Const. art. ty County v. Mendocino County, 90 Pac. 685, 11, § 2, and article 4, § 1a, granting to legal 686, 151 Cal. 279.

voters the right to amend their municipal

charter, and such electors may sign an initiaLEGAL TENDER

tive petition proposing an amendment to the As money, see Money.

charter. Woodward v. Barbur, 116 Pac. 101,

104, 59 Or. 70. To constitute a "legal tender" it is essential to prove an actual offer of the sum due, A county court, in considering a petition unless the actual production and offer of the for an election to determine whether the sale money be dispensed with by the express dec- of liquors shall be prohibited, recited in their laration of the creditor that he will not ac- order that the matter came before them on cept it, or by some equivalent act. Green- the petition of "legal voters” of the county, wood v. Watson, 171 Fed. 619, 621, 96 C. C. and that, “it appearing to the court that said A. 421 (citing Buchenau v. Horney, 12 ni. petition is signed by more than 10 per cent. 336).

of the qualified electors,

and has A decree requiring payment at a certain been properly compared and certified to be time is not complied with by a tender of the genuine and is in all respects in due form of amount in “national bank notes.” Lawrence by the court that the prayer of said petition

law, it is therefore considered and ordered 1. Staigg, 10 R. I. 581, 598.

be and the same is hereby granted." Held, A bill of exchange is not "legal tender.” that the terms "legal voters" and "qualified United States Health & Accident Ins. Co. v. electors" as used in the order are not equivaClark, 83 N. E. 760, 762, 41 Ind. App. 345. lent to "registered voters” as used in Laws LEGAL TITLE

1905, p. 41, providing for the calling of an

election to determine whether the sale of inSee Inchoate Legal Title.

toxicating liquors shall be prohibited on peSeisin importing, see Seisin.

tition of 10 per cent. of the "registered votA purchaser's interest in land by virtue ers." Roesch v. Henry, 103 Pac. 439-441, of a contract of sale is "legal title" within 54 Or. 230. the one-year limitation (Code Supp. 1907, $

Laws 1905, p. 41, provides that whenever 3447b), barring the claim of a spouse not a petition therefor, signed by not less than 10 joining in a conveyance by the holder of the per cent. of the “registered voters” of any legal title. Hutchinson v. Olberding, 130 N. county, shall be filed with the county clerk, W. 139, 140, 150 Iowa, 604.

the county court shall order an election to The phrase "legal title" in Code Civ. determine whether the sale of liquors shall Proc. 368, providing that in an action to be prohibited, and that, in determining recover real property he who establishes a whether any such petition contains the reqlegal title to the premises is presumed to have uisite percentage of "legal voters,” said perbeen possessed thereof within the time re- centage shall be based on the total vote in quired by law, is not necessarily a mere pa- 'such county for Justice of the Supreme


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