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to the heir, as part of his inheritance, and which may be monuments, considered as chattels in the nature of heir-looms. Thus
&c., &c., set monuments, coat-armour, the sword, pennons, and other up in honour
of deceased : ensigns of honour, set up in memory of the deceased, shall go to the heir of the deceased, as heir-looms in the manner of an inheritance (n); and it matters not that they are annexed to the freehold, albeit that is in the parson (o). But the pro- coffin and
shroud : perty of the shroud and coffin remains in the executors or other person who was at the charge of the funeral: and it may be laid to be theirs, in an indictment for stealing them (P). So though a testator devise all his jewels, &c., to his Collar of S S.
and garter: wife, yet his garter and collar of S S. shall go to his heir, in the way of heir-looms (q). So where land is held by the tenure of cornage, an antient horn may go along with the antient horn: inheritance, as an heir-loom (r). In the case of Upton v. Lord Ferrers (s), a question was Jonurnals of the
House of raised, whether the executor, or the heir-at-law of a peer of Lords: Parliament having succeeded to the peerage, was entitled to the Journals of the House of Lords, which are delivered to peers: The Master of the Rolls (Sir R. P. Arden) did not determine the point; but intimated an opinion that the heirat-law was entitled, observing, that a bishop gives a receipt for the journals of his see: and upon the death of a peer, the subsequent volumes only are delivered to the next lord. Charters or deeds relating to the inheritance, are con- Charters and
deeds belongo sidered so much to savour of the realty, that the law for ing to the insome purposes does not account them to be chattels (t), but heritance, go
(n) Corven's case, 12 Co. 105. them away, an action on the case Co. Lit. 18, b. Frances v. Ley, lies for either the executor or the Cro. Jac. 367. May v. Gilbert, 2 heir: Godb. 200, by Coke: i. e. Bulstr. 151. 2 Black. Comm. 429, (semble) if they were originally set Co. Lit. 18, b.
up with a faculty : Seager v. Bowle, (0) Co. Lit. 18, b. 1 Gibs. Cod. 1 Add. 541 : and see Spooner v. 544. 2 Black. Comm. 429.
Brewster, 3 Bingh. 136. (p) 2 Russell on Crimes, 163. If (9) Earl of Northumberland's the executor lays a grave-stone on case, Owen, 124, the testator in the church, and sets (r) Pusey v. Pusey, 1 Vern. 273. up coat-armour, and the vicar or (s) 5 Ves. 801. parson removes them or carries
(1) By a grant of omnia bona et
to the heir, provides, that they shall follow the land to which they relate, and pot to the executor : and shall vest in the heir, as incident to the estate, to the
exclusion of the executor or administrator (u). So far has the doctrine of charters and other written assurances concerning the realty not being chattels been carried, that larceny could not have been committed of them at common law, the taking of them being considered, (as of other things
which were part of the freehold,) merely as a trespass and so of the box not a felony (x). The very box or chest which has usually in which they are kept : been employed for keeping them, partakes of their nature,
and goes to the heir, and not to the executor (y); and of that also, at common law, no larceny could have been committed (z). Some writers have taken a difference, that the executor shall have the chest unless it be shut or sealed (a). But the weight of authorities seems against any such distinction, and in favour of the heir's general right (b).
But this rule applies to those deeds and writings only which relate to the freehold and inheritance; for such as regard terms for years, goods, chattels, or debts, belong to
the executor or administrator (c). Chatteis set- Personal property may also be devised or limited in strict tled or devised as heir-looms: settlement to one for life, with remainder to sons and
daughters in tail, so as to be transmissible like heirlooms (d).
Thus a testator may devise or limit in strict
catalla, charters concerning the
(u) Godolph. Pt. 2, c. 14, s. 1.
(x) 2 Russell on Crimes, 141. But this defect of the common law has been remedied by stat. 7 & 8 Geo. IV. c. 29, s. 23.
(y) Godolph. Pt. 2, c. 14, s. 1.
(2) 2 Russell on Crimes, 142.
Touchst. 470. i Roll. Abr. 915, tit. Exors. (U.) pl. 7.
(6) Godolph. Pt. 2, c. 14, s. 1. Wentw.Off. Ex.156. Law Test. 381.
(c) Wentw. Off. Ex. 153, 14th edit. Bac. Abr. tit. Exors. (H. 3.) If the writings of an estate are pawned or pledged for money, they are considered as chattels in the hands of the creditor, and in case of his decease, they will go to his personal representatives as party entitled to the benefit accruing from the loan: Touchst. 469.)
(d) Co. Lit. 18, b. note (109), by Hargrave.
settlement an estate and capital mansion, together with personal property, as the plate, pictures, library, furniture, &c. therein, such plate, &c. to be enjoyed, together with the house and estate, unalienable by the devisees in succession, so far as the law will allow. But the chattels, whether trustees be interposed or not, will be the absolute property of the first person seised in tail, and on his death devolve on his executors or administrators; and be conformable to all the other rules concerning executory devises, so that the property cannot be rendered unalienable longer than lives in being and twenty-one years afterwards (e).
If the chattels, therefore, which are intended to go as heir-looms, are merely subject to the same limitations as the real estate limited in strict settlement, they will vest absolutely in the first tenant in tail, though he should die within an hour after his birth, and will go to his personal representative: Hence as the real estate in that event passes over to the next remainder-man, a separation between the two properties ensues. It has been a subject of much discussion whether this will be obviated by a mere direction that the chattels shall go together with the land, "for so long a time as the rules of law and equity will permit. But the point, it should seem, must now be considered as settled, that this must be treated as a direct and not as an executory gift, and that, consequently, the absolute interest in the chattels will nevertheless vest in the first tenant in tail (f). And accordingly in the case of Rowland v. Morgan (g), it was ruled by Sir James Wigram, V.C., and afterwards Lord Cottenham, C., on appeal, that a direction annexed to a bequest of chattels, that they shall go as heirlooms, although accompanied by a direction to the executors to make an inventory of them, does not render such
(e) Ibid. Carr v. Lord Errol, 14 Ves. 478.
(f) Foley v. Burnell, 1 Bro. C. C. 274. Vaughan v. Burslem, 3 Bro. C. C. 101. Duke of Newcastle v. Lincoln, 12 Ves. 218 (overruling
Lord Hardwicke's decisions in
(9) 6 Hare, 463. 2 Phill. Ch. Ca. 764.
bequest executory, or give to a Court of Equity any power to modify the legal effect of the bequest. In order, therefore, to prevent the separation, it is usual, after subjecting the chattels to the same limitations as the freehold which they are to accompany as heir-looms, to add a declaration, that they shall not vest absolutely in the tenant in tail by purchase until twenty-one, or death under that age,
leaving issue inheritable under the entail (h). Executors Lord Eldon, in Clarke v. Lord Ormonde (i), said that ought not to apply them
heir-looms are a kind of property that are rather favourites unnecessarily
of the Court :—and that, although no testator can in any to the payment of debts. way exempt any part of his personal estate from applicability
to the payment of his debts, nor can he put into the hands of his executors the means of defending themselves at law; yet where a testator makes a Will, providing that certain portions of his effects shall be treated as heir-looms, it is the duty of the executors, as far as possible, to preserve those parts of his property, and unless compelled, they ought not
to apply them to the payment of debts (k). Chattels which In the case of a corporation sole, as a bishop or parson, go to the successor of a cor
the general rule is, that chattels cannot go in succession : poration sole and there has already been occasion to point out a strong of heir-looms. instance of this doctrine, viz., that though a lease for years -.
be made to a bishop and his successors, yet it will go to his executors (). But there are some exceptions (not only in cases of choses in action, which will hereafter be examined, but) in cases of chattels personal, which shall go to the successor of a corporation sole in the manner of heir-looms. Thus it has been held, that the ornaments of the chapel of a preceding bishop belong to the succeeding bishop, and are merely in succession (m). So if an incumbent enter upon a parsonage house in which are hangings, grates, iron backs
(h) See Pow. Dev. by Jarman, tels under which they do not vol. i. 716, 730, 732; vol. ii. 642. vest in the tenant in tail on his 2 Jarman on Wills, 493, 2nd edit. birth. Boydell v. Golightly, 14 Sim. 346, (3) 1 Jacob, 114, 115. per Shadwell, v. c. See also (k) 1 Jacob, 108. Potts v. Potts, 1 H. of L. 671, for (1) Ante, p. 597. an example of a limitation of chat- (m) Corven's case, 12 Co. 105,106.
in the manner
to chimnies, and such like, not put up there by the last incumbent, but which have gone from successor to successor the executor of the last incumbent shall not have them, but they shall continue in the nature of heir-looms: but if the last incumbent fixed them there only for his own convenience, it seems they shall be deemed as furniture, or household goods, and shall go to his executor (n).
II. Fixtures, from which the executor or administrator is Fixtures. excluded in respect of the heir or devisee, or in respect of the remainder-man or reversioner. When personal inanimate chattels are affixed to the freehold, they are usually denominated fixtures (); and the questions concerning them, which form the present subject of inquiry, have arisen in the nature of exceptions to the general rule of law with regard to chattels in their condition, viz., quicquid plantatur solo, General rule, solo cedit, i.e. whatever is affixed to the realty is thereby quicquid plan. made parcel of it, and partakes of all its incidents and cedit. properties (p).
(n) 4 Burn. E. L. 304, 8th edit. J., 11 Exch. 119. The general
(o) The word “fixture” is here question of the origin and extent used to convey the idea simply of of the doctrine of “ Fixtures annexation to the freehold: which fully discussed in the late case of sense of the term is the most easy Bishop v. Elliott, 10 Exch. 496, of adaptation to the present Trea- S.C. in Cam. Scacc. 11 Exch. 119. tise. For general purposes, the On a declaration in trover for definition given in the work of goods, chattels, and fixtures, (enuMessrs. Amos and Ferard, is cer- merating, among other merely tainly the most convenient and sci- moveable articles, stoves, shelves, entific, viz. “ fixtures are those per- closets, cupboards, &c.): it was sonal chattels which have been an- held, after verdict, (general danexed to land and which may be mages having been assessed on afterwards severed and removed by the whole declaration,) that the the party who has annexed them word “ fixtures” would not neagainst the will of the owner of cessarily be taken to mean things the freehold." Treatise on the Law affixed to the freehold, and thereof Fixtures, p. 2. See also the fore the judgment ought not to be judgments of Parke, B., and Martin, arrested : Sheen v. Rickie, 5 Mees. Baron, in Elliott v. Bishop, 10 & W. 175. Exch. 507, 518, and of Coleridge, (p) See the judgment of Lord