American Law and Procedure, Volume 6

Front Cover
James De Witt Andrews
La Salle Extension University, 1910
 

Selected pages

Contents

Advantages and disadvantages
57
Publication of will
61
Signing of attesting witnesses
62
Attestation clause
64
Statement of place of residence of witnesses
65
Wills in Louisiana
66
Competency of attesting witnesses to Louisiana wills
68
Incorporation by reference
69
Validation of defectively executed wills by reference
70
Informal means of revocation
72
Cannot create new testamentary gift
73
Obliterating
74
Can the testator destroy testamentary expression by an agent
75
Necessity of expression of intent to revoke
76
101 Best method of revocation
77
103 Revocation cannot be conditional
78
104 Dependent relative revocation
79
105 Revival of revoked testamentary expression
80
106 Nullification by lapse
81
107 Nullification by lack of ownership of property concerned
82
108 Nullification by marriage and by birth of children
83
109 Nullification by lack of provision for descendants
84
CHAPTER III
85
111 Courts of probate and administration 86 88888888888
86
113 Same continued SECTION 2
88
115 Liability for funeral expenses
89
SECTION 3
90
117 Chattels
91
118 Claims in favor of the estate
92
SECTION 4
94
122 Court in which will is probated
95
124 Probate of lost or destroyed wills
96
SECTION 5
97
127 Disqualification for executorship
98
128 Appointment of administrator when there is no will
99
129 Disqualification for office of administrator
100
130 Administration bonds
101
132 Administrators de bonis non
102
134 Appraisement
103
SECTION 7
104
137 Domestic title of executor valid elsewhere
105
138 Extraterritorial responsibility of executor
106
Illustrations
107
140 Title to claims in favor of estate
108
Documentary claims
109
142 Statutory authority of foreign personal representative
110
144 Time when the title to interests in land vests
111
145 Right to rents and profits of real property
112
147 Nature of title of personal representative to property of estate
113
SECTION 9
114
149 Permissible investments
116
150 Care of funds of estate
117
152 Growing crops
118
On personalty
119
On realty
120
156 Inheritance taxes
121
122 Plaintiffs action must be in reliance on defendants
122
Terms of sale
123
159 Sale of real property
124
161 Conducting and perfecting sale of real property
125
162 Incumbrances and liens upon real property sold
126
164 Rights of purchasers under sale in fraud of estate
127
166 Survival of claims against decedent
128
168 Establishment of claims
129
Nonmatured and contingent claims
130
170 Waiver of statute of nonclaim or of limitations
131
171 Claims of personal representative against decedent
132
173 Counsel fees
133
174 Expenses of litigation
134
175 Expenses for help and facilities in administration
135
177 Same continued
136
SECTION 13
137
179 Duty to pay claims in order of priority
138
180 Secured claims against decedent
139
183 Marshalling of assets
140
SECTION 14
141
186 Order of final distribution and discharge
142
188 Remedy of creditors after termination of administration
143
SECTION 15
144
190 Conclusion
145
EQUITY JURISDICTION CHAPTER I
147
Common law writ
148
The jury system
149
Character of relief given
150
Disadvantages of common law procedure
151
Origin of court of chancery or equity
152
Procedure of court of equity
154
Development of equity as a legal system
155
Equity more flexible than the common law
156
CHAPTER II
159
Specific performance ordinarily presupposes a valid con tract at law
160
Specific performance of contracts for personalty occasion ally granted
161
Obligations to convey or restore unique chattels
162
Contracts for patented articles
163
Contracts for articles of speculative value
164
Summary
165
Terms of contract uncertain
166
Seller entitled to specific performance
167
Seller must have a good title
168
Effect of deficiency in quantity or quality
169
Buyers rights when seller has imperfect title
170
Specific performance generally re fused
172
Possession and improvement of promised land
173
Rights of buyer against transferees of seller
174
Buyer entitled to proceeds of property
175
Descent of property upon death of buyer or seller
176
Rights of buyer in possession before conveyance
178
Rights of seller in possession before conveyance
179
Time not of essence of contract
180
Foreclosure of buyers equitable interest
182
Risk of loss at law is on seller
184
Right to specific performance assignable by buyer
186
Dower rights of buyers widow
187
General doctrine of part performance
189
Part performance by taking possession
190
Remaining in possession
191
Paying money or rendering services
192
Erection of valuable improvements
193
CHAPTER III
195
47 Same Seller against grantees of buyer
196
Illustration
198
In favor of grantees of seller 195 196 198
199
No relief to sellers grantee where agreement not intended to benefit land
200
Circumstances affecting interpretation of agreement
201
Agreements affecting afteracquired land 200
202
53
204
Restrictions contrary to public policy 204
205
Restrictive agreement for benefit of a business
206
Illustration
207
58 Restrictive agreements regarding sale of copyrighted articles
209
Restrictive agreements regarding use of copyright or plates for printing
210
Restrictive agreements regarding sale of proprietary medicines
211
CHAPTER IV
214
Illustrations
215
Further illustrations
217
Contracts for personal services
218
Comparison with contracts to convey land
219
Doctrine of Lumley v Wagner
220
Doctrine eriticised
221
American authorities upon doctrine
222
CHAPTER V
224
Rule restated
225
71a Illegality
226
Mistake
227
Hardship
228
Test of reasonableness
229
Sharp bargains
230
Public inconvenience
231
Inadequacy of consideration
232
CHAPTER VI
234
In equity
235
SECTION 1
236
Concrete illustration
237
Mistake in description of land conveyed
238
Relief against successive transferees
239
Same continued
240
No reformation against bona fide holder for value
241
Rescission
243
Mistake as to interest conveyed
245
Material mistake as to amount of land conveyed
246
Mistake as to title to real property
247
No reformation against a volunteer
248
Manner in which equity effects reformation
249
SECTION 2
250
Voluntary deed conveying too much
251
Everyone is presumed to know the law
252
Contrary view
258
111 Conveyance of personal property induced by fraud
264
Plaintiff under
271
representations
277
134 Comparison with law of quasicontracts
288
135 Ultra vires contracts of corporations
289
CHAPTER VIII
290
137 Ameliorating waste
291
138 Permissive waste
293
Rights of successive tenants in proceeds
294
141 Tenancies without impeachment of waste Equitable waste
295
Test of equitable waste
296
143 Accounting for equitable waste
297
144 Mandatory injunctions after active waste
298
146 Waste between tenants in common
299
SECTION 2
300
148 Equitable conception of trespass
301
Temporary or trifling trespasses
302
Trial of title at law
303
What damage is irreparable
304
154 Defendant in possession without claim of right
305
155 Plaintiff in possession under disputed title
306
Trial of title at law
307
Temporary injunction
308
Temporary injunction
309
160 Trespass on land in street owned by plaintiff
310
161 Mandatory injunction to prevent continuing trespass
311
Innocent trespasses doing little injury
312
Necessity for previous trial at law
313
165 Remedy at law must be inadequate
315
166 Nuisances causing physical injury to property
316
Illustrations
317
168 Hardship to defendant as defence
318
Opposing view
319
170 Inconvenience to public as defence
320
171 Right of owner of reversion to an injunction
321
173 Effect of acquiescence by plaintiff
322
175 Damages as incidental to injunction
323
176 Injunction to restrain public nuisances
324
SECTION 4
325
179 Other considerations affecting temporary injunction
327
180 Balance of convenience
328
181 Infringement or threat of infringement necessary
329
183 Acquiescence in infringement
330
184 Accounting for profits as incidental relief
331
185 Infringement of copyrights
332
CHAPTER IX
334
187 Several plaintiffs separately entitled to equitable relief
335
Conflicting decisions
336
190 A plaintiff entitled to equitable relief against several de fendants separately
337
191 Nuisance by several defendants acting independently
338
192 Plaintiff not entitled to equitable relief against several de fendants separately
339
193 Several similar suits in equity against one defendant
340
Same ques tions of law
341
Same questions of fact
342
196 Successive suits at law between same parties
343
CHAPTER X
345
199 Cancellation of nonnegotiable instruments obtained by fraud
346
Action already pending at law
347
Several suits pending at law
348
SECTION 2
349
Cancellation of invalid deed by plaintiff in possession of property
350
Contrary view
351
Protection to title acquired by adverse possession
352
210 Cancellation where burden of proof will be on holder of instrument
353
CHAPTER XI
355
212 Applicant must be impartial stakeholder
356
215
357
217
358
220
359
TRUSTS AND TRUSTEES CHAPTER I
361
Origin of uses
362
Fundamental nature of the beneficial ownership
363
Uses enforced against others than feoffee to uses
364
Modes of creating uses
365
Duration and descent of interest of cestui que use
366
Reasons why uses became so common
367
Purpose of statute of uses
368
Effect of statute of uses
369
Nature of a trust
370
CHAPTER II
372
Rights against transferee of trustres from trustee
373
Rights against donee from trustee
374
Constructive notice
375
Purchase with notice from purchaser for value without notice
376
Repurchase by trustee from purchaser for value without notice
377
Money paid innocently but notice received before title acquired
378
Title acquired innocently but only part of price paid be fore notice
379
Comment on conflicting views
380
SECTION 2
382
Trustee may sue cestui for converting trustres
383
Cestuis equitable interest not ownership even in equity
384
Trustee owns trustres even in equity
385
Right of delinquent trustee to repent and recover trustres
386
Exceptional cases
387
Claim of cestui is purely equitable
388
Trust may be enforced though trustres out of jurisdiction
389
Rights of cestui where trustee refuses to perform duty
390
Rights of cestui in possession of property
391
Statute of limitations
392
Cestui not entitled to vote as owner of res
393
CHAPTER III
395
Language necessary to the creation of a trust
396
Illustrations
397
Necessity for consideration
398
Consideration in trusts created by transfer of property
400
Reasons
401
48a Notice to cestui
402
Subject matter of trust
403
Debtor cannot hold debt in trust
404
Novation distinguished from creation of trust
405
Equitable interests may be held in trust
406
Statute of frauds
407
Contents and signature of writing
408
Effect of statute
409
CHAPTER IV
411
Constructive trusts
412
A scientific classification of trusts
413
SECTION 2
414
Real nature of these trusts
415
Methods of rebutting presumption of resulting trust
416
Rebuttal of counter presumption
418
Resulting trust in favor of one paying portion of purchase money
419
Such resulting trusts abolished in some states
420
SECTION 3
421
Same continued
422
Basis for a constructive trust when conveyance without consideration
423
Resulting Trust Where Intended Trust is Ineffectual 71 Statement of problem
424
The resulting trust here really a constructive trust
425
Illustrations
426
SECTION 5
427
No resulting trust if devise be subject to payment of certain sums
428
Illustration
429
SECTION 6
431
Origin of doctrine
432
Trust must be disclosed to trustee during lifetime of testator
433
Same continued
435
SECTION 7
436
Statement of problems involved
437
Doctrine applies to misappropriation by nonfiduciaries
438
Misappropriation by theft
439
Cestui entitled to all proceeds of misappropriated property
440
Where person misappropriating property pays part of price of new property
441
Cestui entitled to equitable lien or charge at his option
442
Early view
443
View based on various presumptions
444
Theory of equitable lien
445
Extreme illustration of latter view
446
Agent employed to buy or sell property may not act for himself
447
Tenant for life and remainderman
448
Partners
449
CHAPTER V
450
101 Charitable trusts defined
451
102 Invalid charitable trusts
452
104 Statutory system of charitable trusts in some states
454
105 Necessity for cestui in private trusts
455
106 A trust without a cestui
456
107 Was Morice v Bishop of Durham rightly decided
457
108 Remedy if trustees do not carry out purpose of gift
458
SECTION 2
459
112 A married woman may be a trustee
460
113 A corporation may be a trustee
461
116 Persons of unsound mind as trustee
462
118 A cestui que trust as trustee
463
119 Grounds for removal of trustee
464
121 Necessity for acceptance by trustee
465
122 Effect of death of trustee before instrument creating trust takes effect
467
209 Cancellation where invalidity must appear in suit on in strument 353
468
125 Duty on acceptance of trust
470
127 Standard of care for trustee
471
128 Duty in making investments
472
Trusts and Trustees
487
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Page 189 - no action shall be brought whereby * * * to charge any person * * * upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; * * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.
Page 157 - The doctrines of this Court ought to be as well settled, and made as uniform almost, as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case.
Page 198 - It is said that, the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor and with notice of which he purchased.
Page 417 - This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor.
Page 407 - June (1677) all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect.
Page 402 - The true distinction appears to me to be plain, and beyond dispute: for a man to make himself a trustee there must be an expression of intention to become a trustee, whereas words of present gift show an intention to give over property to another, and not retain it in the donor's own hands for any purpose, fiduciary or otherwise.
Page 417 - The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold, whether taken in the names of the purchaser and others jointly, or in the name of others without that of the purchaser, whether in one name or several, whether jointly or successive, results to the man who advances the purchase money.
Page 401 - A man may transfer his property without valuable consideration in one of two ways: he may either do such acts as amount in law to a conveyance or assignment of the property, and thus completely divest himself of the legal ownership, in which case the person who by those acts acquires the property takes it beneficially, or on trust, as the case may be; or the legal owner of the App.
Page 402 - I declare myself a trustee' but he must do something which is equivalent to it, and use expressions which have that meaning; for, however anxious the Court may be to carry out a man's intention, it is not at liberty to construe words otherwise than according to their proper meaning...
Page 472 - The duty of a trustee is not to take such care only as a prudent man would take if he had only himself to consider; the duty rather is to take such care as an ordinary prudent man would take if he were minded to make an investment for the benefit of other people for whom he felt morally bound to provide.

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