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Executor of a husband of dowress.
Executor of a man seised in right of his
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 optimâ 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. (K.) pl. 3. Wats. C. L. 513, 4th edit.
(d) Wats. C. L. 513, 4th edit. 3 Burn. E. L. 415, 8th edit.
(e) 2 Inst. 81. Anon. Dyer, 316, a.
(ƒ) Bract. lib. 2, fol. 96. 2 Inst. 81.
(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,
(i) Co. Lit. 55, b. Swinb. Pt. 3, s. 6, pl. 11, 253, 7th edit. In Wentw. Off. Ex. p. 148, 14th edit.
marriage, the wife shall have them (k). And if husband 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).
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 death to the exclusion of her husband's executors, as a dowress is (m).
husband and wife are joint tenants.
Right of ex
ecutor of a
jointress to emblements.
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).
When there is a right to emblements, the law gives a free entry, egress, and regress, as much as is necessary, in order to cut and carry them away (p). But the emblements do
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.
(4) 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.
ecutor of tenant at Will to emblements.
Entry, egress, and regress, emblements.
to take the
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.
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
(g) 239th Query.
(r) Wentw. Off. Ex. 141, 142, 14th edition.
mination "loom" is of Saxon original, in which language it signifies a limb or member: so that heir-loom is nothing else but a limb or member of the inheritance (s). An heirloom is also called "principalium," a chief or principal, and "hæreditarium" (t).
Brooke says (u), that heir-looms are those things which have continually gone with the capital messuage, by custom, which is the best thing of every sort, as of beds, tables, pots, pans, and such like of dead chattels moveable. And Lord Coke says (x), that heir-looms are due by custom and not by the common law, and that the heir may have an action for them at common law, and shall not sue for them in the Ecclesiastical Court. Also in Spelman's Glossary (y), an heir-loom is defined to be 66 omne utensile robustius quod ab ædibus non facile revellitur, ideoque ex more quorundam locorum ad hæredem transit tanquam membrum hæreditatis." And in Les Termes de la Ley (2), (a book of great antiquity and accuracy) (a), an heir-loom is described to be "any piece of household stuff (ascun parcel des utensils d'un mease,) which, by the custom of some countries, having belonged to a house for certain descents, goes with the house (after the death of the owner) unto the heir and not to the executors." Hence it seems to follow, that an heir-loom, in the strict sense of the word, can only go to the heir by force of a custom, and that in it's nature it is a chattel distinct from the freehold. Yet Blackstone (b) says, that heir-looms are "generally such things as cannot be taken away without damaging or dismembering the freehold; " And Lord Holt is reported to have said at Nisi Prius, that goods in gross cannot be an heir-loom, but they must be things fixed to the freehold, as old tables, benches, &c. (c); which proposition is not only adverse to the authorities above cited, with
what they are
must go to the
heir by cus
semble, must be of a pon
are not devisable to the executors:
but are alienable by the ancestor in his lifetime.
Chattels in the
regard to an heir-loom being a detached chattel, but is also liable to the objection that the heir would not then take it by custom, but as a thing annexed to the freehold at common law. Moreover in the report of Lord Petre v. Heneage, by Lord Raymond (d), Lord Holt merely says, " a jewel cannot be an heir-loom, but only things ponderous, as carts, tables, &c." (e), which agrees with the above definition by Spelman, 66 omne utensile robustius."
The custom which entitles the heir must be strictly proved (ƒ).
The ancient jewels of the Crown are heir-looms, and shall descend to the next successor (g).
If a man, says Lord Coke (h), be seised of a house, and possessed of divers heir-looms that, by custom, have gone with the house from heir to heir, and by his Will deviseth away the heir-looms, this devise is void; for Littleton says, "the Will takes effect after his death, and by his death the heir-looms, by ancient custom, are vested in the heir, and the law prefers the custom before the devise." And Lord Coke, in another place, observes, that the ancient jewels of the Crown, being heir-looms, are not devisable by testament (i). So Lord Macclesfield, in Tipping v. Tipping (k), said, "I take it, bona paraphernalia are not devisable by the husband from the wife, any more than heir-looms from the heir" (1). Yet, during his life, the owner may sell or dispose of them, as he may of the timber of the estate (m).
Besides heir-looms, properly so called, there are other nature of heir- instances of inanimate personal chattels, which the law gives
(d) Vol. i. p. 728.
(e) And Blackstone, in an earlier
(h) Co. Lit. 185, b.
(i) Co. Lit. 18, b.
(k) 1 P. Wms. 730.
(1) See also to the same effect, 2 Black. Comm. 429. Com. Dig. Biens. (B.)
(m) 2 Black. Comm. 429. So the king may dispose of the ancient crown jewels by patent: Lord Hastings v. Sir Archibald Douglas, Cro. Car. 344, by Berkeley and Jones.