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be likely to find application, are rare, and the subject need not be given any further attention.
$ 136a. Laws regulating disposition of personal property by will. — The right of disposing of one's property as one pleases, by transfer or conveyance inter vivos, is an indefeasible incident of the right of property in personalty. The transfer of real property may, under certain limitations, be restrained or prohibited according to the discretion of the legislature, since lands are acquired by grant from the State, subject to the right of the State to determine the conditions and terms upon which they are to be held. But that cannot be done with personal property. Personal property is the product of man's labor, instead of being the free gift of nature, and one's right of property is derived from the exercise of dominion over the thing.
It is a part of that lawful dominion over the thing, that the owner has the right to sell or give it away. But the patural right of property, and consequently the natural right of disposition of it, lasts only as long as the natural dominion. When that control which one may claim in consequence of the actual or constructive possession of the thing ceases, the natural right of disposition ceases; and if one has under the law any further control of the thing, it must rest upon positive law. It is, therefore, a legislative privilege, and can therefore be taken away by the same power which gave it. It will, therefore, be conceded that the right to dispose of personal property by will rests upon positive or statutory law, and is therefore subject to legislative regulation and prohibition without limitation. It is not disputed that such is the rule in respect to the disposition of lands by will, for we know that the present right to devise lands depends upon the authority of the English
1 See ante, $ 119. 2 See ante, $ 119.
statute of wills, enacted in the reign of Henry VIII., or of some American statute, designed to take the place of the English statute; whereas the right to dispose of personalty by testament comes down to us as a common-law right. But there can be no doubt that the right to bequeath personal property is as much the creature of positive law, as the right to devise lands. This was the position taken by the Supreme Court of Ohio in a case, in which an act of the legislature was sustained, which provided that a bequest, by a testator leaving issue living, to any religious or charitable purpose shall be void, if made within twelve months of the testator's death. The enactment operated as a restraint upon the right to dispose of his personal property by will. In delivering its opinion, the court said: “We hold that the right to acquire property implies the right to dispose of it. But the inalienable rights here declared, as well as those implied, are possessed by living, not dead
A disposition by will does not take effect during the testator's life, but operates only after his death. While the right of testamentary disposition may be, as Mr. Redfield in his work on wills says, instinctive, it nevertheless depends solely on municipal law, and has never been regarded as a natural or inalienable right. It has always been subject to the control of legislative power, and such power is not limited in this State by a constitutional provision.'
§ 137. Involuntary alienation. — It is true with personal, as with real property, that as a general rule the property of one man cannot by legislative enactment be taken away and given to another. Not only is this true in respect to known and recognized owners of personal property, but it is also true, where the property is not claimed by any visible or known owner. Thus it was held in North Carolina to be unconstitutional for the State by statute to appropriate the unclaimed dividends of private corporations to public uses. For the same reasons the legislative diversion of a bequest to a different use, than what was provided by the donor, was held to be unconstitutional, although in both cases the State was the beneficiary. The diversion was an interference with the reversionary interest of the donor's heirs." But, notwithstanding this general rule, there are a few exceptional cases in which the State may lawfully dispose of one's personal property against his will. They are principally the same as have already been explained and justified in reference to the involuntary alienation of real property;: and, the reasons for this exercise of police power being the same in both cases, there is no need for a repetition in this place. It seems to be very doubtful whether there is any room for the application of the principles of eminent domain to personal property. Mr. Cooley says that the State may, in the exercise of its eminent domain, appropriate to a public use private property of every description. This is confounding the meaning of terms. Eminent domain means that superior and absolute right of property which the State, as the legal representative of organized society, has in the lands within its borders, and subordinate to which all private property therein is held. In cases of extreme public necessity, it is quite probable that the State may appropriate the personal property of the citizen on payment of its full value. At least this is the case in time of war. The governments of all civilized nations exercise this power of appropriation of personal property, in order to supply them
i See 2 Bla. Com. 491, 492.
Patton v. Patton, 39 Ohio St. 590.
i University of North Carolina v. N. C. R. R., 76 N. C. 103 (22 Am. Rep. 671).
2 Trustees Brooks Academy o. George, 14 W. Va. 411 (35 Am. Rep. 760).
3 See ante, $ 120.
selves with whatever is needful in the prosecution of the war; and the forcible and irregular seizure of property by military commanders have been justified, when the necessity was urgent and such as will admit of no delay, and where the civil authority would be too late in providing the means required for the occasion. Not only does the State, in time of war, appropriate whatever personal property they may need for the prosecution of the war, as food or ammunition or weapons of warfare, but it more frequently makes forced loans of capital from its people by compelling them to accept its treasury notes as legal tender in payment of debts both public and private.? And it is quite likely that the State may, in any other case of extreme necessity, appropriate whatever of private property may be needful to satisfy some urgent general want. Suppose, for example, in the case of a general failure of the crops, a famine should occur, and those who did possess stocks of provisions refused to sell at any reasonable price, or refused to sell at all, while people were brought to the extremity of starvation. Could not the State compel those who had a “corner” on the provision market to deliver up their property for the public good, on payment of a reasonable price? Every one has a right to put whatever price on his goods his judgment, his cupidity, or other feeling, may prompt, and the State cannot ordinarily regulate the price of commodities.3 But when the public want of food becomes so great, that the failure to satisfy it will be sure to give rise to serious disturbances of the public peace and the violent appropriation of the food that is denied them, it is idle to speak of the sacredness of private property. It cannot be doubted that an official appropriation of articles of food, under circumstances of such urgent necessity, would be judicially justified on the plea of necessity, however illogical it may seem. But all other means of satisfying the public hunger must first have been exhausted, before the selfish proprietor of the scarce articles of food may be forcibly subjected to instruction in the graces of Christian charity.'
1 Farmer v. Lewis, 1 Bush (Ky.), 66. See Harmony o. Mitchell, 1 Blatchf. 549; Mitchell o. Harmony, 13 How. 115.
2 See ante, $ 90. 3 See ante, $ 95.
§ 138. Control of property by guardian. — The control of the ward's property is so common an authority of the guardian, that it is altogether unnecessary to refer to cases in support of the constitutionality of a law which invests the guardian with this control over the property of the infant ward. The helplessness of the minor, and his inability to manage his property in a careful manner, resulting from his immaturity, constitute sufficient reasons for taking from him the control of his property. The powers of the guardian are dependent upon the provisions of the law, and are constantly subject to legislative regulation and change. The common law gave to the guardian of a minor the power to manage his real estate, lease it and collect the rents, make repairs, etc., but he had not the power to make a sale of it in fee, without an order from a court of equity. And this is the general rule, in this country, at the present day.' But the guardian has, in the absence of statutes to the contrary, the ordinary power of selling and disposing of the personal property of the minor, whenever he should deem it advisable to do so. And it seems that, after a guardian has been appointed and has taken charge of the ward's estate, he acquires such a vested interest in the property during the guardianship, that a law would be unconstitutional, because it deprived him of a vested right, which provided for the sale of the minor's property by another, even though the other person be the mother of the ward.
1 As to the sale of estrays, see post, $ 141. ? See Schouler Dom. Rel. 480-487. 8 See Schouler Dom. Rel. 461-479. • Lincoln v. Alexander, 52 Cal. 482 (28 Am. Rep. 639).