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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 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 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. 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 raised, whether the executor, or the heir-at-law of a peer of 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 considered so much to savour of the realty, that the law for some purposes does not account them to be chattels (t), but
(n) Corven's case, 12 Co. 105. Co. Lit. 18, b. Frances v. Ley, Cro. Jac. 367. May v. Gilbert, 2 Bulstr. 151. 2 Black. Comm. 429. Co. Lit. 18, b.
(0) Co. Lit. 18, b. 1 Gibs. Cod. 544. 2 Black. Comm. 429.
(p) 2 Russell on Crimes, 163. If the executor lays a grave-stone on the testator in the church, and sets up coat-armour, and the vicar or parson removes them or carries
them away, an action on the case
(q) Earl of Northumberland's
(r) Pusey v. Pusey, 1 Vern. 273.
(t) By a grant of omnia bona et
Journals of the
Charters and deeds belong
ing to the inheritance, go
to the heir,
and not to the executor:
so of the box
in which they are kept:
tled or devised
provides, that they shall follow the land to which they relate, 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 not a felony (x). The very box or chest which has usually 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).
Personal property may also be devised or limited in strict 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.
(z) 2 Russell on Crimes, 142.
Touchst. 470. 1 Roll. Abr. 915, tit. Exors. (U.) pl. 7.
(b) 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 the 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
Executors ought not to apply them unnecessarily
to the payment of debts.
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 ().
Lord Eldon, in Clarke v. Lord Ormonde (i), said that heir-looms are a kind of property that are rather favourites of the Court-and that, although no testator can in any 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).
In the case of a corporation sole, as a bishop or parson, the general rule is, that chattels cannot go in succession: and there has already been occasion to point out a strong 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 (1). 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 suc cessor 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, vol. i. 716, 730, 732; vol. ii. 642. 2 Jarman on Wills, 493, 2nd edit. Boydell v. Golightly, 14 Sim. 346, per Shadwell, V. C. See also Potts v. Potts, 1 H. of L. 671, for an example of a limitation of chat
tels under which they do not
(i) 1 Jacob, 114, 115.
(m) Corven's case, 12 Co. 105,106.
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 (o); 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, solo cedit, i.e. whatever is affixed to the realty is thereby made parcel of it, and partakes of all its incidents and properties (p).
(n) 4 Burn. E. L. 304, 8th edit. (0) The word "fixture” is here used to convey the idea simply of annexation to the freehold: which sense of the term is the most easy of adaptation to the present Treatise. For general purposes, the definition given in the work of Messrs. Amos and Ferard, is certainly the most convenient and scientific, viz. "fixtures are those personal chattels which have been annexed to land and which may be afterwards severed and removed by the party who has annexed them against the will of the owner of the freehold." Treatise on the Law of Fixtures, p. 2. See also the judgments of Parke, B., and Martin, Baron, in Elliott v. Bishop, 10 Exch. 507, 518, and of Coleridge,
J., 11 Exch. 119. The general
(p) See the judgment of Lord
General rule, tatur solo, solo quicquid plan