Right of executor of te nant for life to emblements. specific bequest in the Will which can apply to emblements, they will vest in the executor, and after his assent, in the specific legatee (s). The privilege of taking the emblements is by no means confined to the case of the representatives of a person seised of the inheritance, as against the heir: but the rule is general, that every one who has an uncertain estate or interest, if his estate determines by the act of God before severance of the crop, shall have the emblements, or they shall go to his executor or administrator (t). Therefore, the executor or administrator of a tenant for life is entitled to emblements to the exclusion of the remainder-man or reversioner because in this case the estate of the tenant is determined by act of God (u). So if tenant for years, si tamdiu vixerit, sows, and dies before severance, his executor shall have the corn, for the uncertainty of the determination of his estate (x). But there may be a case where the executor of the tenant for life has no right to emblements, on account of the deceased not having been the actual party who sowed the land, and the consequent failure of the reason upon which the right is founded. Thus if A. seised of land, sows it, and then conveys it or devises it to B. for life, remainder to C. for life, and B. dies before the corn is reaped, in this case B.'s executors shall not have the emblements, but they shall go with the land to C. (y). And if A. seised in (s) Swinb. Pt. 7, s. 10, pl. 8, (t) Com. Dig. Biens, (G. 2.) year, and the new owner of the land shall be entitled to a proportion of the rent. (x) 1 Roll. Abr. Emblements, (A.) pl. 12, p. 727. (y) Grantham v. Hawley, Hob. 135. Anon. Cro. Eliz. 61, recognised, ibid. 464. Spencer's case, Lit. 55, b. note, Winch. 51. Co. Right of execu tors of clergy to emblements fee, sows land and conveys it to B. for life, remainder to C. for life, and both B. and C. die before severance, the crop shall not go to the executors of either B. or C., but revert to A. (2). If a disseisor sow the land of tenant for life, and the tenant for life die, the executors of the tenant for life shall have the corn, and not the disseisor, nor he in reversion (a). The executors or administrators of the incumbent of a benefice would probably at common law be entitled to the emblements of the glebe lands: for the deceased had an of the glebe. uncertain interest in the land, which was determined by the act of God. The right, however, is fully established by the statute 28 Hen. VIII. c. 11, which provides and enacts, that in case any incumbent happens to die, and before his death, hath caused any of his glebe lands to be manured and sown at his own proper costs and charges with any corn or grain, that then in that case every such incumbent may make his testament of all the profits of the corn growing upon the said glebe so manured and sown (b). If the successor be inducted before the severance of the emblements from the ground, the successor shall have the tithe thereof; for although the executor represent the person of the testator, yet he cannot represent him as parson, corn is severed, his executor shall not have it, but he in reversion. So if tenant for life sows the land, and grants over his estate, and the grantee dies before the corn is severed, his executor shall not have it by Popham and Gawdy, Justices, in Knevett v. Pool, Cro. Eliz. 464. But if the devise be to B. for life, without remainders over, and B. dies before severance, the executor of B. shall have the corn, though B. did not sow: Winch. 51. Co. Lit. 55, b, note (2), from Hal. MSS. Ante, p. 634, 635. (z) Hobart, 132, in margine. Gilb. Ev. 215: but see the preced- (a) Knevit v. Poole, Gouldsb. (b) But a parson who resigns his living, is not entitled to emblements: Bulwer v. Bulwer, 2 Barn. & Ald. 470. The general rule of law is, that the tenant shall not have emblements when the tenancy is determined by his own act; as where the lessee surrenders, or a woman who is tenant durante viduitate marries, or the estate determines by forfeiture, condition broken, &c. Com. Dig. Biens, (G. 2.) Davis v. Eyton, 7 Bingh. 154. Dowress and her executors, when entitled to emblements. Executor of a husband of dowress. Executor of a man seised in right of his wife. inasmuch as another is inducted (c): Otherwise, if the parson dies after severance from the ground, and before the corn is carried off (d). If the husband sows the ground, and dies, and the heir assigns the land sown to his wife for her dower, she shall have the crop, and not the executors of the husband: for she shall be in de optimá possessione viri, above the title of the executor (e). It was with reference to this especial privilege of a dowress, that at common law she could not, according to the more general opinion, devise corn which she herself had sown, nor did it go to her executors or administrators (f): but now, by the statute of Merton, 20 H. III. c. 2, the representatives of a tenant in dower, like those of any other tenant for life, will be entitled to emblements (g). If tenant in dower sows the land, and takes husband, who dies before severance of the corn, the dowress shall have the crops, and not the executor of the husband. But if the husband of a dowress sows the land, and dies before severance, then the executor of the husband shall have them (h). And, generally, with respect to the executor of a man seised in right of his wife, the rule is, that if he sow and die before severance, his executors shall have the emblements (i). But it seems, that if the land was sown before (c) 1 Roll. Abr. 655. Dismes. (d) Wats. C. L. 513, 4th edit. (ƒ) Bract. lib. 2, fol. 96. 2 Inst. (g) See Com. Dig. Biens, (G. 2.) that the statute was only in affirmance of the common law. See also S. P. Perk. s. 522, and Gilb. Ev. 212. If two be tenants in common of land in fee, and one of them takes a wife, and dies, and the wife is endowed, &c., and she and the other tenant in common sow the land, &c., and afterwards she makes her executors, and dies, the corn not being severed, now her executors shall have the corn in common with him who held in common with the tenant in dower: Perk. s. 523. (h) Bro. Abr. tit. Emblements, pl. 26. (i) Co. Lit. 55, b. Swinb. Pt. 3, s. 6, pl. 11, 253, 7th edit. In Wentw. Off. Ex. p. 148, 14th edit. husband when husband and wife are joint marriage, the wife shall have them (k). And if husband Executor of and wife are joint-tenants for life, and the husband sows, and the land survives to the wife, it is also said that she shall have the corn (1). tenants. Right of ex ecutor of a jointress to The executor or administrator of a jointress, like a tenant in dower, is entitled to emblements of the estate settled in jointure; .but she is not entitled to them at her husband's emblements. death to the exclusion of her husband's executors, as a dowress is (m). Upon the death of a tenant by the curtesy, like any other Right of extenant for life, the emblements of the estate held by the curtesy will go to his executors or administrators (n). ecutors of tenant by the curtesy. A tenancy at will (in the strict sense of the expression) is Right of exdetermined by the death of the lessee, and his executor or administrator will be entitled to emblements (0). ecutor of tenant at Will to emblements. and regress, to take the When there is a right to emblements, the law gives a free Entry, egress, entry, egress, and regress, as much as is necessary, in order to cut and carry them away (p). But the emblements do emblements. a case is put of the husband's sowing the land which his wife has for a term of years as executrix of another, and the author gives his opinion, that the husband's executor would be entitled to the crop, at least so much as is more than the year's value of the land. (k) 1 Roll. Abr. Emblements, (A.) pl. 17, p. 727. Gilb. Evid. 213. (1) Co. Lit. 55, b., and the note to that passage from the Hal. MSS. Anon. Cro. Eliz. 61, by Wray, C. J. Wentw. Off. Ex. 148, 14th edit. See also Godb. 189, pl. 270, by Coke, C. J. But see Dyer, 316, a. S. C. nomine, Arnold v. Skeale, Noy, 149. 1 Roll. Abr. 727, pl. 16. Rowney's case, 2 Vern. 322, 323, and Gilb. Ev. 213, contra; in which last book it is said, that the land is not in such a case cultivated by a joint stock, (as in the ordinary case of joint tenancy,) but it is (m) Fisher v. Forbes, 9 Vin. Abr. (0) Co. Lit. 55, b. See Hayling 545. not give a title to exclusive occupation; and it is doubted in Plowden's Queries (q), whether the executors of a lessee for life shall not pay rent for the land till the corn is ripe; though, perhaps, says that author, the executors of tenant in fee simple shall have the corn without paying for it. What chattels personal inanimate do not pass to the executor. 1. Heir-looms: SECTION III. Of the Estate of an Executor or Administrator in Chattels As to chattels personal inanimate: These are evident, viz., all household stuff, implements, and utensils, money, plate, jewels, corn, pulse, hay, wood felled and severed from the ground, wares, merchandise, carts, ploughs, coaches, saddles, and such like moveable things (r). All these pass to the executor and administrator: and although any one of them should be specifically bequeathed to a legatee, it will not vest in him till the executor has assented. It is necessary to attend to three instances in which the right of the executor or administrator to the chattels personal inanimate of the deceased is barred, to some extent, in favour of certain special claimants: 1. Heir-looms, and things in the nature thereof, in respect of the heir or successor. 2. Fixtures, in respect of the heir or devisee, or in respect of the remainder-man or reversioner. 3. Paraphernalia and the like, in respect of the widow. 1. Heir-looms and things in the nature thereof. It is proposed to consider, 1, Heir-looms and things of the same nature, from which the executor or administrator is excluded in favour of the heir or successor. Heir-looms are such goods and personal chattels as shall go by special custom to the heir along with the inheritance, and not to the executor or administrator of the last proprietor. The ter (9) 239th Query. (r) Wentw. Off. Ex. 141, 142, 14th edition. |