BOOK THIRD.

THE PROPERTY RIGHTS OF A CITIZEN OF THE UNITED STATES.

CHAPTER I.

EMINENT DOMAIN.

In this country all property is held subject to the right of eminent domain. This is the name given in law to the right of the sovereign to take private property for public purposes. This right belongs in this country, first, to the United States; and, secondly, to each State: but the right of each State is confined to property within its boundaries. To this right there are but two limitations, but they are very important. One of these is, that the property must be taken for public purposes; the second is, that full and adequate compensation must be made for the property so taken. Both of these conditions are essential, and only when both exist together can private property be lawfully taken. It follows, therefore, that if there be no public necessity there is no public right; and that if property be taken by the sovereign without such necessity, as there is no public right, land taken by the sovereign, where no such necessity exists, is unlawfully taken, although full and adequate compensation be made. And, on the other hand, if land be taken by the sovereign because of such necessity, and for public purposes, it is unlawfully taken, unless full and adequate compensation be made.

It is not, however, necessary that this compensation should be given at once when the land is taken; it is enough if the law provides the means by which the owner of the land may be sure of obtaining compensation: and it has been well said, that it must be as absolutely certain that the compensation will be adequate, and will be received, as that the land is taken. In all our States there are statutory provisions on the subject, by force of which the value of the property taken is ascertained by commissioners or a jury, under the direction of the court, and payment made.

It should be said, however, that this right to compensation is confined to him whose property is taken, and does not extend to him who is indirectly damaged by the taking or the use of another's property. As, for example, if the legislature of a State, by the exercise of its right of eminent domain, gives to a railroad company the right to take and use certain land for the construction of its road, the owner of the land must be compensated. But if the owner of a mill near by is injured by the diversion of his mill-stream from its former course by what the railroad company does, he cannot demand compensation.

By far the most frequent exercise of the right of eminent domain is by the legislature of a State granting to a road, or railroad, or bridge company, the right to take land for their purposes; these being deemed public purposes, although resulting in profit to individuals.

CHAPTER II.

THE ACQUISITION OF PROPERTY.

Property may be acquired in either of six ways.

First, by inheritance. This takes place when a man or woman possessed of property dies intestate (or without a will); then the heirs or next of kin take it, in the proportion which the law points. out. If it be personal property, that is to say, not land, or something affixed to the land, they take it through the instrumentality of administration.

Second, by will. When a person possessed of property makes a will, those to whom he devises or bequeaths his property (“devise” being applied to real estate, and "bequeath" to personal estate) take it either from the executor appointed by the will, or, if there be no executor, by an administrator, with the will annexed.

Third, by purchase and sale.

Fourth, by hiring.

Fifth, by gift.

Sixth, by finding.

Each of these will now be considered in its turn.

CHAPTER III.

THE DISTRIBUTION OF THE PROPERTY OF AN INTESTATE.

If a person dies without a will, and possessed of real property, his heirs take it, under the laws of the several States which provide for this matter, and they are called statutes of descent or of inheritance. The great difference between the law of this country on this subject and the law of England, being what is termed the right of primogeniture, which prevails there and not here. By this right the eldest son takes all the land of an intestate. In this country the land is equally divided among all the heirs, and it is the business of the statutes above mentioned to determine who they are, and what proportions they take. These statutes differ somewhat in the different States, but are substantially alike, and may be said to provide, generally, in the following manner:

First. If the deceased leaves children, his real property goes to them, and to the issue of any deceased child by right of representation, in equal shares. The meaning of taking by representation is this: the issue of a deceased child take his or her parent's share only; thus, if a man dies leaving three children living, and had a fourth child who is dead, and who left four children who are living, the property will be divided into four equal parts, one of which each child takes, and the four children of the deceased child divide among them the remaining part, each one of them getting a sixteenth of the whole. By "issue" is meant all lawful lineal descendants.

Second. If the intestate leaves no living child, then the property goes to all his other issue or lineal descendants. If all these descendants are of the same degree of kindred to the intestate, - that is, all grandchildren or great-grandchildren, they share the property among them equally; but if they are in different degrees of kindred, — as, if some were grandchildren and others great-grandchildren, or still further off, they take by the right of representation; that is, the estate is divided into as many shares as there are grandchildren and deceased children leaving issue, and the great-grandchildren take the share which would have come to their deceased parent.

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Third. If the intestate leaves no issue, then the real property goes to his father.

Fourth. If he leaves neither issue nor father, then it goes in equal shares to his mother, brothers and sisters, and to the children of any deceased brother or sister by a right of represen

tation.

Fifth. If he leaves no issue, no father, no brother nor sister, living at his death, and no issue of a deceased brother or sister, then it all goes to his mother. In some States it all goes to his mother, if there be no issue, nor father, nor brother, nor sister of the intestate, and the issue of a deceased brother or sister takes nothing.

Sixth. If he leaves no issue, and no father, mother, brother, nor sister, then the estate goes to the next of kin who stand in an equal degree of nearness to him.

Seventh. The statutes of descent usually contain various minute provisions for possible circumstances; but of these we do not think it necessary to speak. If the intestate leaves a widow and no kindred, in some States his whole estate goes to his widow; and if the intestate be a married woman and leaves no kindred, her estate goes to her husband.

Eighth. If the intestate be a woman, whether married or unmarried, her real estate goes as above stated, excepting that the husband, if a child had been born to them who might have inherited the estate, takes the use, rents, and profits of real estate for his life. He is said in law to hold the estate as a "tenant by the curtesy."

Ninth. If the intestate leaves no widow or husband, and no kindred, his or her estate shall escheat (or go) to the Commonwealth.

THE DISTRIBUTION OF PERSONAL ESTATE.

This is regulated in the several States by what are called the statutes of administration. Generally the real property of an intestate goes at once to those who are heirs by law. The personal property all goes to an administrator upon the estate, and by him is distributed as the law directs. This distribution of personal estate was once a very different thing from the distribution of the real estate; but now it is distributed in much the same way, and is governed by the same rules, as above stated, for the inheritance of real property. The principal differences are these: A widow is entitled to her dower of the real property; that is to say, she has for her life one-third part thereof, and the use, income, or rents thereof. But of the personal estate there is no dower: instead thereof the widow takes in full property one-third part of the personal estate; and if there be no issue, the widow takes generally one-half, and in some States the whole.

If the intestate was a married woman leaving issue, in many of the States her personal property goes to them; in others of the States it goes to her husband, the issue not taking.

If the husband dies leaving a widow and no issue, she takes generally one-half of the personal estate. Of late years the property relations of husband and wife have been much changed in different States; and we refer to our former chapter on the subject of Husband and Wife for a succinct account of them.

CHAPTER IV.

OF THE DISPOSAL OF PROPERTY BY

WILL.

SECTION I.

OF WILLS.

Few persons are aware how difficult it is to make an unobjectionable will. There is nothing one can do, in reference to which it is more certain that he needs legal advice, and that of a trustworthy kind. Eminent lawyers, not practised in this peculiar branch of the law, have often failed in making their own wills, both in England and in this country; and there are seldom blank forms for wills printed and sold, as there are for deeds and leases. Nevertheless, it may happen that one is called upon to make his own will, or a will for his neighbor, under circumstances which do not admit of delay; or he may have some interest in the will of a deceased person, and questions may have arisen, which some knowledge of legal principles will answer. We shall try to state here what may be of use in such cases; and shall append forms for a will.

Any person of sound mind and proper age may make a will. A married woman cannot, unless in relation to trust property, whereof the trust or marriage settlement reserves to her this power, unless the statute law of her State gives it, which is the case now in many States.

One must be of full age in order to devise real estate. But in most of our States minors may bequeath personal property; and a frequent limitation of the age for such bequest is eighteen years for males, and sixteen years for females.

The testator should say distinctly, in the beginning of the instrument, that it is his last will. If he has made other wills, it is