What does &quot;Prima facie case is not to be confused with prima facie title&quot; mean? I do not know much about the law. I know prima facie means, but do not understand what it means in this sentence, which comes from an Indian court case: &quot;Prima facie case is not to be confused with prima facie title&quot;. What is a prima facie title? I have googled it but have not found a relevant answer.
Here is the full sentence: &quot;Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial.&quot; As you probably know, prima facie means &quot;on its face.&quot; A prima facie case is a case in which one party has presented enough evidence to support a verdict in its favor. A title is a document that serves as proof of ownership. A prima facie title, is when one doesn't have a title, but has other things that usually indicate one is the owner. Having these things shows, on their face, that you are the owner of the property. For example, if you don't have a title, but you have receipts showing you've paid the taxes on the land these may be taken as evidence that you own the property. The sentence you quote comes from a long running (over 12 year!) dispute involving the sale of a house in India. This particular decision involved a request for a temporary injunction. This sentence is in a paragraph discussing the conditions under which a court can grant an injunction. It appears to be quoted fairly often in other cases. In this sentence, the court makes two points. First, in order to get an injunction, the plaintiff must make a prima facie case that there is a dispute here that needs to be resolved in court. Without such a dispute, there is no reason to enjoin (stop) the defendant from acting until after the court decides. Second, the prima facie case that must be made to get an injunction is not the same as the prima facie title, which must be proved in court.
None of the things listed are statutes. They are all parts of or compilations of parts of statutes. A 'statute' is a document issued by an official body, such as Congress, which contains a law or command. 'USC' refers to the United States Code, which is a compilation of statutory law. It is not the law. It is prima facie evidence of the law, but may be proven to be wrong. The 'statute' is the Act passed by Congress. These can be found in the United States Statutes at Large. For example, the Labor Management Relations Act 1947 (Public Law 80–101, 61 Stat 136, also known as the Taft–Hartley Act) is a statute, passed by Congress on 23 June 1947. It is codified at (i.e. a reasonably reliable copy of the provisions of the Act, taking into account subsequent amendments, can be found at) 29 USC s 401-531. But 29 USC is not a statute in any sense of the word. To use a particularly 'meta' example: 1 USC 204(a) codifies the rule that the USC is prima facie evidence of the state of the law of the United States, but the statute which made this rule is Public Law 80-278, 61 Stat 633 ('An Act to codify and enact into positive law, title 1 of the United States Code, entitled "General Provisions"'), which consists of a slab of text copied out of the United States Code as it then stood. So Congress does sometimes enact parts of the Code; but the Code itself is not a statute.
The Probate Estate v. Non-Probate Transfers First off, keep in mind that only the &quot;probate estate&quot; is probated at all. Assets held in joint tenancy with right of survivorship, assets held in trust, and assets with a death beneficiary, for example, pass by non-probate transfer. Some states also have a rebuttable presumption that all tangible personal property which is not part of a business owned by someone in a married couple that is not subject to a certificate of title is owned in joint tenancy by right of survivorship in favor of a surviving spouse. The probate estate consists only of property held in the name of the decedent with no beneficiary designation and no joint tenants (although there could be tenant-in-common co-owners or co-owners as part of a general partnership). The Primary Domicile Probate The primary probate is generally conducted in the state and county in which the decedent was domiciled at death. Intangible property, including interests in entities, and the legal rights of the decedent are generally deemed to be located at that domicile for probate purposes. The common law choice of law rule is to have moveable property also governed by the law of the state of domicile. While it doesn't have constitutional standing, it is widely adopted. The unsecured claims (i.e. claims not secured by collateral) of third-parties against the decedent are deemed located at the decedent's domicile at death. A will contest is almost always conducted solely in the primary domicile state, and that resolution has collateral estoppel and arguably full faith and credit clause binding effect in other ancillary probate cases. Almost every state, however, recognizes the validity of a will that was valid where executed at the time it was executed. Estate plans of individuals with property in many states that would be subject to many ancillary probate proceedings are routinely devised so that the property subject to ancillary probate is either not subject to probate at all, because it is in a revocable trust or joint tenancy with right of survivorship or has transfer on death beneficiary, or it at least in an entity whose shares are handled in the primary probate rather than in an ancillary probate, when the decedent was represented by counsel (and it verges on malpractice not to recommend that this be done if estate planning counsel is aware of the facts). Of course, not everyone hires a lawyer to do their estate plan before they die (even if they meant to do so), so ancillary probates still happen. Ancillary Probate Proceedings When there is real property in the estate owned outright by the decedent, and not subject to a joint tenancy or other non-probate transfer (such as a transfer on death deed) and not owned via a trust or entity, then an ancillary probate must be opened up in that state to probate that parcel of real property. One if left in an ancillary probate dealing with real property and debts for which that property is collateral in the ancillary probate. But the ancillary probate is largely a formality and mostly defers to the rulings of the court in the primary probate case. Sometimes closely held business which is a sole proprietorship or general partnership (as opposed to an entity), with a state or local specific license, must be the subject of an ancillary probate. But more often, the closely held business is an entity with a license and tangible personal property held in the entity. In those cases, the stock or membership interest is intangible property that can be probated at the domicile of the decedent, rather than in an ancillary probate where the business is located. In other words, let's say a person lives in Maine, but has property in 20 different states. Various houses, boats, bank accounts, brokerage accounts, you name it. Does the will have to then be probated in every one of the states in which the various property resides? The bank accounts, brokerage accounts, and most of the etc. that are part of the probate estate would be probated in Maine. The houses outside of Maine and possible the cars and boats and sole proprietorship inventory, equipment and license transfers outside of Maine would be resolved in ancillary probate proceedings. Conflicts Of Law Between Primary And Ancillary Probate Laws What happens if the probate laws of the states conflict? The procedural rules of the forum state govern the ancillary probate, rather than those of the primary probate case. Every state adopted the general rule that the directions of a will are valid and enforceable subject to only a handful of exceptions, and in most cases, intestacy rules when there is no surviving spouse are likewise identical. Almost all states would honor a will admitted to probate in the primary probate state (and are arguably required to do so under the full faith and credit clause), even if it would not have been admitted to probate in the ancillary probate state. While it is theoretically possible to have a conflict of law regarding general partnership property, inheritance of general partnership property is largely governed by the Uniform Partnership Act and this model state law is, in fact, a law that has been adopted in every U.S. state and is uniform on this point in every U.S. state. The main circumstances in which there could be conflicts between the state probate laws are: quirky intestate situations (differences between per stirpes and per capita at each generation, or differences between treatment of half-blood or multiple line of descent heirs), exemptions from creditors (e.g. homestead rights, tenancy-by-entirety rights, special legacy property rules in some Southern states), details of slayer statutes (e.g. does negligent homicide count?), divorce revocation laws (not every state revokes will provisions in favor a divorced spouse), community property rights in property, mandatory inheritance rights of disinherited spouses (dower, curtsy and force share laws, some states treat this as a creditor's claim, others don't), and provisions for what happens when a specific devise fails because an asset no longer exists if the will doesn't specifically state what happens. It is fairly rare for this to come up in practice, however, since normally the ancillary probate forum state court defers to the primary state appointed executor's requests, and it is quite rare for that to be disputed by other parties to the estate in the ancillary proceeding. It happens, I've been there, but it is very uncommon. In those cases, there is little formal guidance. The forum state's law is presumed to apply, but that presumption can be overcome by showing that some other state has the most significant connection to the legal issue over which there is a conflict. The analysis is handled by the forum state court on a case by case basis in the rare cases where it comes up. The primary probate court can also sometimes make an end run around ancillary probate court rulings applying substantive ancillary probate forum probate laws to property in the ancillary probate state by ordering a compensatory adjustment in how property in its jurisdiction is distributed to conform to the laws of its state. A recent case from New Hampshire discussed how choice of law works in probate cases: We first address whether the New Hampshire probate division erred in applying Massachusetts’ pretermitted heir statute, rather than New Hampshire's RSA 551:10, to the testator's will. On appeal, the petitioner argues that, despite the language of Article Ninth in his mother's will, RSA 551:10 applies because his mother was domiciled in New Hampshire at the time of her death and her estate consists of only personal property. The respondent argues that “[t]he intent of Marie G. Dow is clear,” (bolding and capitalization omitted), pursuant to Article Ninth of her will, that Massachusetts law should apply and asserts that New Hampshire “give[s] effect” to choice-of-law provisions in wills. We agree with the petitioner. The probate division's findings that the testator's estate consists of only personal property and that she was domiciled in New Hampshire at the time of her death are not challenged on appeal and need not be disturbed. We review the probate division's application of law to undisputed facts de novo. Under New Hampshire law, personal property of a testator generally passes according to the law of the state of domicile. Compare Eyre, 37 N.H. at 120 (“The general principle of the common law is, that the right and disposition of movables is to be governed by the law of the domicil of the owner.”), with Mass. Gen. Laws Ann. ch. 199, § 1 (West 2012) (stating that Massachusetts, when administering the will of a non-inhabitant of the Commonwealth, will dispose of the estate “according to his last will, if any; otherwise ... his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant”). Our law comports with Section 263(1) of the Restatement (Second) Conflicts of Laws, which provides: Whether a will transfers an interest in movables and the nature of the interest transferred are determined by the law that would be applied by the courts of the state where the testator was domiciled at the time of his death. Restatement (Second) Conflicts of Laws § 263(1), at 121 (1971). Compare id. (pertaining to transfers of personal property by will), with id. § 239(1), at 48 (“Whether a will transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs.”). Because the testator's will disposes of only personal property, i.e., “movables,” the nature of the interests in this property will be determined by the laws of New Hampshire — where she was domiciled at death. Restatement (Second) Conflicts of Laws, supra § 263(1), at 121. The law in New Hampshire is clear, and we are not persuaded that there is a reason to deviate from it in the instant case. The respondent relies upon our decisions in In re Farnsworth's Estate, 109 N.H. 15, 241 A.2d 204 (1968), and Royce v. Estate of Denby's, 117 N.H. 893, 379 A.2d 1256 (1977), in support of her position that Massachusetts’ pretermitted heir statute applies to the will because New Hampshire law honors the testator's intent, as expressed in Article Ninth of Marie G. Dow's will, to have her estate “administered and enforced according to the laws of the Commonwealth of Massachusetts.” This reliance is misplaced. The respondent emphasizes that the court, in In re Farnsworth Estate, “gave effect to the choice of law provision in [the testator's] will.” However, our review in that case was limited to the testator's designation of New York law as the law to apply to her testamentary trusts. In In re Farnsworth's Estate, the testator was a domiciliary of New Hampshire at the time of her death though her will was “drawn and executed in New York City.” The testator's will stated that it shall be administered in the State of New York and shall be construed and regulated by the laws of the State of New York.” We noted that the administration and validity of a “ ‘trust of movables ... created by will’ ” is generally governed by the law of the state of the testator's domicile at death, but explained that there are “ ‘two situations in which the law of another state may be applied to the administration of the trust. The first is where the testator has designated the law of another state as the governing law. The second is where the testator has fixed the administration of the trust in a state other than that of his domicile at death. We determined that the will “created both of these situations” and, thus, held that “these trusts were intended to be and should be administered in the State of New York.” Here, the testator did not establish a testamentary trust. The fact that the will at issue in In re Farnsworth's Estate disposed of the testator's property via testamentary trusts was essential to our reasoning and our decision in that case. see also In re Lykes' Estate, 113 N.H. 282, 284, 305 A.2d 684 (1973) (holding provision of will that testamentary trust be construed according to laws of Texas was “a valid provision which must be respected by this court” (citing Scott, supra §§ 574-75; Restatement (Second) Conflicts of Laws, supra § 268(1), at 143). The pertinent rules to apply to dispositions of property via will are dependent upon the form of the disposition and the form of the property. See, e.g., Haynes v. Carr, 70 N.H. 463, 463, 480, 49 A. 638 (1900) (“There is a wide distinction between a gift to charity and a gift to a trustee to be by him applied to charity.” (quotation and emphasis omitted)); Eyre, 37 N.H. at 120 (a decedent's personal property passes according to the law of the state of domicile, while real property passes according to the law of the state where it lies). Therefore, in the instant case, In re Farnsworth Estate does not support deviating from New Hampshire law as the law governing the disposition of personal property in Marie G. Dow's will. cf. Robbins v. Johnson, 147 N.H. 44, 45, 780 A.2d 1282 (2001) (“The pretermitted heir statute, on its face, applies to ‘wills,’ not to trusts.”). Similarly, the fact that the testator in Royce became a domiciliary of New Hampshire after she had become incapacitated and never regained capacity before her death was essential to our reasoning and our decision in that case. “The Royce holding was limited to the facts of that case, which are distinguishable from those before us.” In Royce, we recognized that, because the testator had no opportunity due to her incapacity to change her will after her move to New Hampshire, it was inequitable to apply the New Hampshire rule that the law of the domicile controls the succession to personal property when the testator had no opportunity to respond to New Hampshire law. Here, the testator had an opportunity to change her will after relocating to New Hampshire approximately a year before her death.3 Therefore, Royce does not support deviating from New Hampshire law as the law governing the disposition of personal property in Marie G. Dow's will. We note that our prior case law, contemplating the applicability of New Hampshire's pretermitted heir statute where the facts implicated more than one jurisdiction, has not expressly dealt with a provision like that of Article Ninth in Marie G. Dow's will, expressing her intent to have her estate “administered and enforced according to the laws” of another state — the Commonwealth of Massachusetts. See, e.g., In re Estate of Rubert, 139 N.H. at 276, 651 A.2d 937 (applying Virginia law to determine whether the plaintiff was a pretermitted heir entitled to an intestate share of the testator's personal property where the testator was domiciled in Virginia). While it is true that we attempt to give maximum effect to a testator's intent, our law does not support the application here of another state's pretermitted heir statute independent of the governing law of the testator's domicile at death with respect to dispositions of personal property. Section 264 of the Restatement (Second) Conflicts of Laws supports a testator's ability, in bequeathing interests in personal property, to select the rules of construction of another state for use in construing the language of her will. See Restatement (Second) Conflicts of Laws, supra § 264(1), at 125 (“A will insofar as it bequeaths an interest in movables is construed in accordance with the local law of the state designated for this purpose in the will.”); id. § 264 cmt. e at 126-27 (“The forum will give effect to a provision in the will that it should be construed in accordance with the rules of construction of a particular state.”). We have not expressly adopted this section of the Restatement, and we need not consider doing so here because even assuming without deciding that Article Ninth designated Massachusetts’ rules of construction for application to the will, neither Massachusetts’ nor New Hampshire's pretermitted heir statute constitutes a rule of construction. As will be discussed in section III, not only is RSA 551:10 not a rule of construction, it is a conclusive rule of law. We, therefore, hold that New Hampshire's pretermitted heir statute applies to Marie G. Dow's will because she was a domiciliary of New Hampshire at the time of her death and her will disposes of only personal property. Accordingly, the probate division erred in applying Massachusetts law to determine that the petitioner is not a pretermitted heir. In re Est. of Dow, 2019-0752, 2021 WL 199619, at *2–5 (N.H. Jan. 20, 2021) (caselaw citations omitted). The Role Of Federal Courts Notwithstanding the fact that parties to probate cases are frequently diverse in citizenship, there is an obscure court created doctrine that provides that probate cases are a matter of state rather than federal court jurisdiction. (The &quot;well pleaded complaint rule&quot; largely prevents federal question jurisdiction from applying.) Part of the legal justification for this is that probate cases are in rem proceedings that primarily adjudicate rights in a particular collection of property (everything owned by the decedent) rather than primarily providing in personam relief between citizens of different states or countries, the way that a lawsuit for breach of contract or a tort or an injunction might. So, unless title to the real property arises under the conflicting claims of two different states (which almost never happens for obvious reasons in the modern era of accurate surveying of state boundaries), diversity jurisdiction is not implicated.
What does this paragraph mean? Line by line. I give my Residuary Estate This is a gift, effective when the person writing the Will dies, of everything that is left over after all debts and taxes are paid and after any other gifts already in the Will (e.g. leaving a car or a house or a Monet to someone in particular) have been given. to the said [Full Name] absolutely I'm going give [Full Name] a name so that it is easier to follow this explanation. [Full Name]'s name for purposes of this answer is &quot;Luna&quot;. This says to give all that stuff to Luna when the person who wrote the Will dies, if Luna is still alive for whatever the required amount of time is after the person who wrote the Will dies. The required survival time period is either in the boilerplate provisions of the Will, or in the relevant statute if the Will is silent on the question. The Will says &quot;absolutely&quot; because historically, someone who received gifts of property in deed or wills in England only got to keep it for their lifetime, unless it clearly specified otherwise, after which someone else would get it. But in this case, if Luna survives this long, Luna gets all of this stuff with no strings attached. and if [Name] shall fail to obtain a vested interest leaving issue who survive me then such issue shall take by substitution If Luna dies before the person who wrote the Will does, or doesn't stay alive for the required number of days afterwards, then Luna isn't entitled to this stuff. Luna's descendants get it instead (i.e. Luna's descendants &quot;take by substitution&quot; what Luna would have gotten if Luna had lived, instead of Luna's probate estate getting the stuff). and if there shall be more than one of such issue they shall take in equal shares per stirpes but so that no issue shall take whose parent is alive and so capable of taking. If Luna predeceases and has exactly one living descendant who is alive when the person who wrote the Will dies, and that living descendant lives the required number of days after the person who wrote the Will dies, then the sole living descendant of Luna gets all of the stuff that is left over when the person who wrote the Will dies. If Luna has more than one living descendant, the stuff that is left over when the person who wrote the Will dies, then Luna's descendants gets broken up the way described below, which is called per stirpes: Create one share for each child of Luna who is alive and survives Luna by the required amount of time. If Luna has only one living child, that child gets everything even if Luna's child has children of their own. Create one share for each child of Luna who didn't live for long enough after the person who wrote the Will's death, if the predeceased child has descendants who are alive and remain alive after the person who wrote the Will dies by the required amount of time. This share is then broken up into one sub-share for each child of the predeceased child who is alive when the person who wrote the Will dies and is still alive after the person who wrote the Will dies by the required amount of time, and one sub-share for each predeceased child of the predeceased child who has living descendants who remain alive for the requisite number of days. Continue this process until 100% of the the residuary estate has been assigned to someone and give them their share of it once the estate is settled. If someone lives past the minimum number of days to outlive the person who wrote the Will, and then dies, that person's share goes that person's probate estate. For visual learners, a per stirpes distributions of assets looks like this: A per stirpes distribution to descendants is the plain vanilla ordinary way to giving stuff to the descendants of a dead person when you don't know in advance who will outlive you. What if Luna predeceases with no living descendants? Usually, this paragraph of a Will will be followed by another paragraph called the &quot;ultimate contingent beneficiary&quot; which says who gets the stuff that's left over in the residuary estate if Luna predeceases the person who wrote the Will and has no living descendants. Often, the ultimate contingent beneficiary will be one or more distant relatives, a list of friends, or a charity. If there is no ultimately contingent beneficiary in the Will, but Luna and all of Luna's descendants predecease the person who wrote the Will, then it goes to the next of kin (a.k.a. &quot;heirs at law&quot;) of the person who wrote the Will, if there are any relatives of the person who wrote the Will who are close enough to qualify to inherit under English inheritances law. If there is no one closely enough related to the person who wrote the Will to qualify under English inheritance law, then the stuff &quot;escheats&quot; (i.e. is inherited by default) by the King (or Queen) of England, as the case may be. There are some circumstances when the Will can be ignored. Everything above explains what this language in the Will means. This isn't always what happens, however. There are several exceptions to the general rule that property goes to the people that the Will says it goes to. I won't list them all here, but it is important when a Will is being written to understand that this is the case. For example, if the person who wrote the Will leaves nothing in the Will to their spouse of thirty years as of the death of the person who wrote the Will, who has no assets of their own, then the Court will partially ignore what the Will says and give some of the residuary estate to the surviving spouse. Also, the Will only controls assets that are in the &quot;probate estate&quot;. Some assets pass at death in what are called &quot;non-probate transfers&quot; that are not controlled by what the Will says. And, finally, of course, if the Will was written when the person signing the Will was of unsound mind, the Will can be invalidated in a &quot;Will contest&quot; in the appropriate court if the person contesting the Will's validity can prove that the person signing it was of unsound mind at the time. This is mediocre legal writing This paragraph gets the job done, but it is not very well written by modern legal Will drafting standards. It is adequate and probably meets the standard of care for a lawyer who hasn't committed malpractice. Lawyers in England have been writing paragraphs like this one for three or four hundred years. But it is not &quot;best practices&quot; legal writing in a Will. Good modern legal drafting for a Will would be much easier for a non-lawyer to understand, in addition to being clear and unambiguous.
The core principle of stare decisis is that the law should not depend on what judge you got; two cases with the same facts should have the same outcome. In the common-law tradition, there weren't really written statutes; there was only "what's been done in the past," and so the only reference you'd have to what the law should be in some situation is past court decisions. If judges didn't have some constraints to rule similarly to before, there really wouldn't be any legal standards (because there was no written law to go back to; in civil-law countries, there always has been a written law, so precedent isn't so important). Stare decisis doesn't actually directly stop a judge from entering a decision that goes against binding precedent. However, judges are expected to obey precedent, and for the most part do what they're supposed to do. If they don't, the case will likely be reversed on appeal. Binding precedent only applies within the area a court serves; a court doesn't have to listen to precedent from a different court that has nothing to do with the case. The rule is that precedent from any court up the appeals chain is binding; federal district courts are bound by their circuit court and SCOTUS, state courts are bound by higher state courts and SCOTUS (but not other federal courts, as the case can't be appealed to them). A court can sometimes overrule its own precedent, but the cases where it can do that are rare (and so applying a higher court's precedent can also be viewed as "if you appeal to them they'll say X, so we're saying X.")
Numbering is for the sake of clarity, and is not intrinsically required. If you refer to a section, you need a way to say which section you mean, and a vague description like "up there where I talked about copying" is insufficient. You can refer to a section by a title, if you need to refer to sections within the contract, as long as your titles match what you refer to them as (and you don't have two sections called "Your Rights").
The appeals court has found that the county court judge made a decision that was consistent with the evidence that was presented at trial. As such, the decision is sound. It appears that the defendant tried to present additional/different evidence or different arguments about the law in the appeal than they did at trial - this is not permitted. As to responsibility, the defendant and their legal team were responsible for deciding how to run their case and what evidence to present and what arguments to run. What evidence to present and how to present it and what submissions to make on the law is a tactical decision for each party. You can get it wrong. That doesn't let you try again on appeal. If your barrister has been negligent, and that directly caused you to lose, you can sue your barrister. In terms of interpreting a particular paragraph of a judgement, the appeals court may or may not make comment on a particular paragraph but the reasons, while important, are not really subject to interpretation other than that. A judgement will give orders, these should be very precise and not open to interpretation - things like &quot;the defendant will pay X to the plaintiff&quot; or &quot;the case is dismissed&quot; etc.
First, civil law has, confusingly, two meanings. It can denote the legal systems used in most of Europe, as opposed to the common-law systems arising in England and spreading to most of the former British empire. In the US, and in other common-law jurisdictions, civil law is pretty much everything other than criminal law. Given the tagging of the question, this seems to be the sense that you have in mind. What is tort law and how does it differ from civil law? Is there any difference or overlap between the two? Does one more broadly encompass the other? Tort law is a subset of civil law. Are torts defined in statute? Some are; some aren't. There is a common-law doctrine of torts. These torts have been defined by the courts through judicial precedent rather than by the legislature through statute law. They are therefore known as &quot;common law torts.&quot; Some jurisdictions have abolished these torts and replaced them with torts defined by statute. or do they exist alongside statute in some way more fundamentally and less ephemerally than statutes exist? Statutorily defined torts are rather less ephemeral than common-law torts, not more. What is a “common law tort “? See above.