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SECTION II.

Of the Estate of an Executor or Administrator in Chattels

Vegetable.

What growing Personal effects of a vegetable nature are the fruit or other things shall go to the heir : parts of a plant or tree, when severed from the body of it, or

the old plant or tree itself, when severed from the ground (u). But unless they have been severed, trees, and the fruit and produce of them, from their intimate connexion with the soil, follow the nature of their principal, and therefore, when the owner of the land dies, they descend to his heir, and do not

pass to his executor or administrator (x). Hence apples, Trees and pears, and other fruits, if hanging on the trees at the time of fruit not severed : the death of the ancestor, shall go to his heir, and not to his executor and administrator (y). So it is of hedges, bushes,

, &c.; for all these are the natural or permanent profit of the earth, and are reputed parcel of the ground whereon they

grow. certain cases

Some cases, however, exist, where even growing timber where growing trees are, owing to special circumstances, considered as

go to the executor, &c.

chattels, and as such will pass to the executor or administrator. Thus, if tenant in fee simple grants away the trees they are absolutely passed from the grantor and his heirs, and vested in the grantee; and if the latter should die before they are felled, they will go to his executor or administrator : for in consideration of law, they are divided as chattels from the freehold (2). So where tenant in fee simple sells the land and reserves the trees from the sale, the trees are in property divided from the land, although, in fact, they remain annexed

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(u) 2 Black. Comm. 389.

(x) Com. Dig. Biens, (H.) Liford's case, 11 Co. 48, a. Swinb. Pt. 7, s. 10, pl. 8.

(y) Swinb. Pt. 7, s. 10, pl. 8.

Wentw.Off. Ex. 146, 147, 14th edit,
Rodwell v. Phillips, 9 M. &W.501.

(=) Stukeley v. Butler, Hob. 173. Wentw. Off. Ex. 148, 14th edit. Com. Dig. Biens, (H.)

to it, and will pass to the executors or administrators of the vendor (a). But if the person so entitled to the trees distinct from the land, afterwards purchases the inheritance, the trees will be re-united to the freehold in property, as they are de facto, and descend to the heir (6). Yet if the tenant in fee simple lease the land for years, excepting the trees, and afterwards grant the trees to the lessee, they are not by this means re-annexed to the inheritance, but the lessee has an absolute property in them, which will go to his executors or administrators (c).

So if tenant in tail sells the trees to another, they are a chattel in the vendee, and his executors or administrators shall have them; and in such case also, fictione juris, they are severed from the land ; but if the tenant in tail dies before actual severance, as to the issue in tail, they are part of his inheritance, and shall go with it, and the vendee or his executor cannot take them (d). The law, it may be presumed, is the same with respect to the vendee of a tenant in tail after possibility of issue extinct, or a tenant for life without impeachment of waste (e). And it seems that Equity would not afford relief (s). With respect to the property in trees and bushes when when trees,

&c., that are severed, there seems to be a material difference between such severed go to trees as, by the general law of the land, or by the custom of the country where they grow, are timber, and such as are not. For if tenant in dower, or by the curtesy, or tenant for life or years unless he be so without impeachment of waste, cuts down timber trees, or a stranger does so, or the wind blows them down, the trees so severed shall not go to the tenant, or

the ex

(a) Harlakenden's case, 4 Co. 63. b. Wentw. ubi supra.

(b) 4 Co. 63, b. Anon. Owen. 49. (c) 4 Co. 63,

b. (d) Liford's case, 11 Co. 50 a. : for, it was said, timber trees cannot be felled with a goose quill.

(e) Pyne v. Dor, 1 T. R. 55.

Bishop of London v. Webb, 1 P.
Wms. 528.

(1) See Treat. on Equity, B. 1,
c. 4, s. 19, that no act of tenant in
tail shall be carried into execution
in a Court of Equity, any further
than at law: for this would be to
repeal the statute de donis.

to his executor, but to the owner of the first estate of inhe. ritance in the land (g). On the other hand, if such a tenant cuts down hedges or trees, not timber, or they are severed by the act of God, the tenant shall have them (h): and, consequently, his executor or administrator. So if trees are blown down, which are in their nature timber, but are dotards without any timber in them (i), or if such are wrongfully severed by the lessor, they belong to the tenant, and will pass to his executors (k).

Emblements :

There are, however, certain vegetable products of the earth, which, although they are annexed to and growing upon the land at the time of the occupier's death, yet, as between the executor or administrator of the person seised of the inheritance, and the heir, in some cases, and between the executor or administrator of the tenant for life, and the remainder-man or reversioner, in others, are considered by the law as chattels (), and will pass as such. These are usually called Emblements.

(9) Herlakenden's case, 4 Co. 63, a. Bewick v. Whitfield, 3 P. Wms. 268 ; in which case Lord Chancellor Talbot said, that this was so decreed upon the occasion of the great windfall of timber on the Cavendish estate. So if tenant for life without impeachment of waste commits equitable waste by cutting ornamental timber : Lushington v. Boldero, 15 Beav. 1. Ormonde v. Kyndersley, ibid. 10. But a tenant for life, though subject to impeachment for waste, is entitled to the interest of money produced by the sale of timber trees cut by order of the Court of Chancery, on account of their being in a decaying state, by reason of standing too thickly: Tooker v. Annesley, 5 Sim. 235. Consett v. Bell, 1 Y. & Coll. C. C. 569.

(h) Com. Dig. Biens, (H.) Ber

ryman v. Peacock, 9 Bingh. 384. S. C. 2 M. & Scott, 524.

(1) Herlakenden's case, 4 Co. 63, a. Countess of Cumberland's case, Moore, 812.

(k) Channon v. Patch, 5 B. &C. 897. S. C. 8 D. & R. 651.

(They are in fact not only in this respect, but in most others looked upon as chattels : for the rule seems now to be established, that all those vegetables which go to the executor and not to the heir, are for most purposes considered mere chattels. They may consequently be seized and sold under a fieri facias ; and the sale of them while growing is not a contract, or sale of any lands, tenements, or hereditaments, or any interest in or concerning them, within the 4th section of the Statute of Frauds ; but a sale of goods, wares, and mer

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The vegetable chattels so named, are the corn and other growth of the earth, which are produced annually, not spontaneously, but by labour and industry, and thence are called fructus industriales. When the occupier of the land, whether he be the owner of the inheritance or of an estate determining with his own life, has sown or planted the soil with the intention of raising a crop of such a nature, and dies before harvest time, the law gives to his executors or administrators the profits of the crop, Emblavence de bled, or Emblements, to compensate for the labour and expense of tilling, manuring, and sowing the land (m). The rule is established as well for the encouragement of husbandry and the public benefit (n), as on the consideration, in the case of tenant for life, that the estate is determined by act of God, and that the maxim of law is, actus Dei nemini facit injuriam (o).

The doctrine of emblements extends not only to corn and to what prograin of all kinds, but to every thing of an artificial and duce the doc.

trine of emble. annual profit, that is produced by labour and manurance (p): ments extends : As hemp, flax, saffron, and the like (); and melons of all kinds (r); and hops also, although they spring from old corn, hemp, roots, because they are annually manured, and require &c.': cultivation (s); and so of potatoes (t).

melons : hops :

potatoes : chandize, within the 17th section : yearly setting or See the judgments of Bayley and should sever them in interest from Littledale, Justices, in Evans v. the soil : Ibid. sed quære. Roberts, 5 B. & C. 829; and of (s) Co. Lit. 55, 6. note (1) from Hullock, B., in Scorell v. Boxall, Hal. MSS. Latham v. Atwood, Cro. 1 Younge & Jerv. 398. See also Car. 515. Wentw. Off. Ex, 147, Jones v. Flint, 10 A & E. 753, S. C. 14th edit. Gib. Ev. 216. Anon. 2 Perr. & Day, 594.

2 Freem. 210. Fisher v. Forbes, (m) Swinb. Pt. 7, s. 10, pl. 8. 9 Vin. Abr. 373, tit. Emblements, (n) 2 Black. Comm. 122. pl. 82. These authorities, however,

(0) By Lord Hardwicke, in Law- do not prove that the person who ton v. Lawton, 3 Atk. 16.

planted the young hops, or his per(p) Co. Lit. 55, 6.

sonal representatives, will be en(9) Ibid. Wentw. Off. Ex. 147, titled to the first crop, whenever 14th edition.

produced : 5 B. & Adol. 120. Post,
(r) Wentw. Off. Ex. 153, 14th

As to Teazles, see Kings-
edit. The author of that book ex- bury v. Collins, 4 Bingh. 202. 5 B.
presses his opinion, that artichokes & Adol. 120.
go to the heir, as they have not that (1) Evans v. Roberts, 5 B. & C.

manurance as

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not to fruits But the rule does not apply, (as it has already appeared.) growing :

to fruit growing on trees (u); nor to the plantation of trees: or young trees for the general rule is, quidquid plantatur solo, solo cedit; planted :

and when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit ; but merely with a prospect of it's being useful to himself in future, and to future successions of tenants (r). Therefore, if a man

x sow the land with acorns, or plant young fruit trees, or oak, elm, ash, or other trees, these cannot be comprehended

under emblements (y). The case of trees, shrubs, and other grounds, &c. :

produce of their grounds planted by gardeners and nursery. men, with an express view to sale, may be mentioned as an exception; for they are removable by them or their executors as emblements are (2).

The growing crop of grass, even if sown from seed, and though ready to be cut for hay, cannot be taken as em. blements; because, as it is said, the improvement is not

nursery

grass :

832, by Bayley, J. It is said in the remark of Lawrence, J., in 3 Godolphin, Pt. 2, c. 14, s. 1, that East, 44, note (c). But where a things under ground, whether in tenant, not being a nurseryman by gardens or elsewhere, as carrots, trade, makes a nursery for fruit parsnips, turnips, or skerrets, shall trees, for the purpose of transplantgo to the heir; and the same is ing to the orchards, he has no right to said in Wentw. Off. Ex. 152, 14th sell them: by Heath, J., in Wyndedit., on the principle that the exe- ham v. Way, 4 Taunt. 316. Lord cutors could not reach them with- Ellenborough held at Nisi Prius, out digging and breaking the soil. that it was waste for an outgoing But Lord Coke says, that if the tenant of garden ground to plough tenant plant roots, his executors up strawberry beds in full bearing, shall have that year's crop : Co. although when he came in he paid Lit. 55, b: and probably at this for them at a valuation: Wetherell day it would be so holden. See 2 v. Howells, 1 Campb. 227. And it Black. Comm. 123.

was held in Empson v. Sodon, 4 B. (u) Ante, p. 628.

& Adol. 655. S. C. 1 Nev. & M. (x) Gilb. Ev. 210. 2 Black, 720, that a tenant (not a gardener Comm. 123.

by trade) cannot remove a border ( g) Co. Lit. 55, 0. Com. Dig. of box planted by himself on the Biens, (G. 1.)

demised premises : And in this case (z) Penton v. Robart, 2 East, 90, Littledale, J., denied that the tenant in Lord Kenyon's judgment: Lee could remove flowers which he had v. Risdon, 7 Taunt. 191, in the planted. judgment of Gibbs, C. J.: and see

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