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case is referred to as of Tr. 43 Eliz., which is the same term when, as Croke, p. 840, reports the last case; and yet Rolle there says it was admitted that the administrator should have the term within the intent of the grant, which seems directly contrary in substance to what is said to have been agreed in Cro. Eliz. 841. As to the report of the case in Noy, 32, it is short, and of Tr. 43 El.; and the point does not there appear. On the whole the difference seems to be this; that if a lease be made for life or years, with a remainder to the executors of the lessee, it shall be a vested interest in the lessee, and consequently, if he dies intestate, shall go to his administrator; but if there be a lease for ninety-nine years, if the lessee live so long, with a proviso, that if he die within the term, that it should be to his executors for forty years, this last term shall not vest in the lessee, but in his executors by purchase; because it is a conditional limitation, and a mere possibility to vest; for this is the point agreed in Cro. Eliz. 841. Quære tamen, whether it would not now be considered as more than a possibility; and see Fearne, 16, 17."
In these cases it was several times laid down, that if a re- Administrator mainder be limited to a man's executors and assigns, as pur- assignee by chasers, there his administrator cannot take as assignee (2). purchase.
cannot take as
(2) Owen. 125. Cro. Eliz. 840, 841.
CHAPTER THE SECOND.
OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR IN THE
CHATTELS PERSONAL OF THE DECEASED IN POSSESSION.
CHATTELS personal are, properly and strictly speaking, things moveable; which may be annexed to, or attendant on,
the person of the owner, and carried about with him from one What are chat- part of the world to another. Such are animals, household tels personal. stuff, money, jewels, corn, garments, and every thing else that
can be properly put in motion, and transferred from place to place (a). All these, and other things of the same nature, generally speaking, belong to the estate of the executor or administrator.
It is proposed to consider this subject in the usual divisions; 1. Into chattels animate. 2. Chattels vegetable. 3. Chattels inanimate.
Of the Estate of an Executor or Administrator in Chattels
Chattels animate may be sub-divided into such as are domestic, and such as are feræ nature. In such as are of a nature tame and domestic, (as horses, kine, sheep, poultry, and the like,) a man may have an absolute property, and they are therefore capable of being transmitted, like any other personal chattel, to hiş executor or administrator. Also hounds, greyhounds, and spaniels and the like, as they may
(a) 2 Black. Comm. 387, 388.
be valuable, and may serve not only for delight but profit, shall go to the executors or administrators (b). In those of a wild nature, i. e. such as are usually found at liberty and Peræ naturæ : wandering at large, generally speaking, a man can have no property transmissible to his representatives (C). But a qualified property may subsist in animals of the property per.
industriam in latter class, per industriam hominis, by a man's reclaiming animals feræ them and making them tame by art, industry, or education, naturæ goes to or by so confining them within his own immediate power, that they cannot escape and use their natural liberty (d); and the animals so reclaimed or confined belong to the executor or administrator. Thus, if the deceased have any tame pigeons, deer, rabbits, pheasants or partridges, they shall go to his executors or administrators: So, though they were not tame, yet if they were kept alive, in any room, cage or such like place; as fish in a trunk (e). But if at any time they regain their natural liberty, the property instantly ceases, unless they have animum revertendi, which is only to be known by their usual custom of returning (f). A qualified property property may also subsist in animals fere natura propter tentiam in
propter impoimpotentiam; as in young pigeons, who though not tame, them. being in the dove-house, are not able to fly out; and they shall go to the executors or administrators (g).
The animals which a man has ratione privilegii are consi- What animals dered as incident to the freehold and inheritance, and do not are incident to
(6) 4 Burn. E. L. 297. It is said, indeed, in Swinburne, Pt. 7, s. 10 pl. 8, p. 929, 7th edit. and in Noy' Maxims, p. 107, that hawks and hounds shall go to the heir with the estate. But it seems clear at this day, that they would go to the executor or administrator as chattels personal. "And why not?" says the author of the Office of Executor, (supposed to be Mr. Justice Doddridge,) "for although hounds, greyhounds, and spaniels be for the most part but things of pleasure,
that hindereth not but they may
(c) 2 Black. Comm. 390, 391.
(e) Wentw. Off. Ex. 143, 14th
(f) 2 Black. Comm. 392.
(9) Wentw. Off. Ex. 143, 14th edit.
and shall not go to the executor :
pass to the executor or administrator. Thus deer in a park (h), (i.e. as it should seem, in a park properly so called, which
must be either by grant or prescription) (i), conies in a warren, Deer in a doves in a dove-house, will not go to the executor or admipark :
nistrator (k); and the reason assigned by Lord Coke, is, Conies in a warren : because, without them, the inheritance would be incomplete. Doves in a dove-house :
Another and more obvious reason mentioned by Lord Coke in the same case, is, that the deceased had not any property in them (1).
So, if a man buys fish, as carps, bream, tenches, &c., and puts them into his pond, and dies, in this case the heir who has the water shall have them, and not the executors; but they shall go with the inheritance; because they were at liberty and could not be gotten without industry, as by nets, and other engines (m); otherwise, (as it has already been said) (n), if they are in a trunk, or in a net, or the like; for
then they are severed from the soil (o). but if the deceased was
But if the deceased has only a term for years in the lands
in which the park, warren, dove-house, or pond is situate, years, the deer, fish, &c., go to the deer, conies, doves and fish will go to the executor or the executor :
(h) Co. Lit. 8, a.
393. In Hannam v. Mockett, 2 11 Co. 50 b. Com. Dig. Biens, Barn. & Cress. 944, Bayley, J., (B.) Wentw. Off. Ex, 127, 14th says, that bees are property, and edition.
are the subject of larceny. The (c) Davis v. Powell, Willes, 46, reader is also referred on these in which case it was held, that matters generally, to the Treatise deer in an enclosed ground, in on the Law of Fixtures, &c., p. 167, which deer had been usually kept, et seq. by Messrs. Amos and Ferard, and which was therefore called a from which excellent work the aupark, might be distrained for rent. thor has derived great assistance And it has been lately held that in compiling this and the followdeer in an ancient and legal park ing part of the present Book. may be so tame and reclaimed from (m) Co. Lit. 8, a. See also Litheir natural wild state as to pass ford's case, 11 Co. 50, b. Parlet v. to executors as personal property: Cray, Cro. Eliz. 372. Anon. 4 Leon. Morgan v. Earl of Abergavenny, 240. Grey's case, Owen. 20. S. C. 8 C. B. 768,
Gouldsb. 129. Com. Dig. Biens, (k) Com. Dig. Biens, (B.) Wentw. (B.) Off, Ex. 127, 14th edition.
(n) Ante, p. 625. (1) The case of Swans, 7 Co. 17, (o) Bac. Abr. tit. Executors, (H. b. As to Bees, see 2 Black. Comm. 3.) vol. iii. 64.
administrator as accessary chattels, following the estate of their principal, viz. the park, warren, dove-house, or pond (p). It must, however, be understood, that the executor or administrator can have no further interest than the deceased had in them, i.e. a right to take to his own use as many as he pleases, during his term, provided he leaves enough for the stores; for if a lessee for years of a park, vivary, warren, or dove-house, kills so many of the deer, fish, game, or doves, that there is not sufficient left for the stores, it is waste (q), and will be equally waste in his executor or administrator.
Before quitting the subject of an executor's estate in qualified prochattels animate, it is proper to mention the sort of qualified perty in the
of hu. property which a man may have in human beings, and which man beings : is transmissible to his personal representatives. The interest prisoner in
execution : which a testator has in the person of his debtor, who has been taken in execution or, more properly, in his liberty, is a personal chattel, and the prisoner cannot be discharged without the concurrence of the executor (r). So a man may acquire prisoner of a sort of personal property in the body of an enemy by taking him prisoner in war; at least till his ransom be paid ; which interest will pass to the executor (s). And this doctrine seems to have been extended to negro-servants who are pur- negro slaves. chased, when captives, of the nations with whom they are at war, and are therefore supposed to continue in some degree the property of their masters who buy them : though, accurately speaking, that property, (if it indeed continues) consists rather in the perpetual service than in the body or person of the captive (t).
(P) Wentw. Off. Ex. 127, 14th in the time of King Henry VIII., edit. Godolph. Pt. 2, c.
13, s. 4.
the king himself, upon the winning (9) Co. Lit. 53, a.
of Boulogne, bought divers pri(r) Wentw. Off. Ex. 139, 140, soners of his subjects: Ibid, 14th ed. 3 Bac. Abr. 57. Execu- (t) 2 Black. Comm. 402. cutors, (H. 1.)
stat. 5 Geo. IV. c. 113, which (s) Went. Off. Ex. 140, 14th amends and consolidates the laws edit. A writ of trespass appears relating to the abolition of the slave in the Register for taking away a trade : and stat, 3 & 4 Wm. IV. prisoner, viz.quare quendam Scotum c. 73, by which slavery throughout prisonarium suum cepit, &c. And the British Colonies was abolished.