contemplate,) still greater latitude and indulgence has been. allowed in favour of the tenant (e). It must, therefore, carefully be observed, that an instance of the right allowed to a tenant as against his landlord, is no authority for its allowance to an executor as against the heir, or the remainder-man or reversioner; nor does it follow, that because the executor of tenant for life or in tail is entitled to certain fixtures, that the executor of tenant in fee will also be entitled. The rule, as anciently established, between the executor and heir of tenant in fee seems to have had no exceptions; whatever was affixed to the freehold descended to the heir as parcel of the inheritance. "The law is the same," says Godolphin (f), "concerning all things fastened to the freehold, or to the ground by mortar or stone, as tables, dormants, leads, mangers, millstones, anvils, doors, keys, glass windows, and the like; for none of these be chattels, but parcels of the freehold, and, therefore, belonging to the heir, not the executor." So it is said in the Touchstone (g), “ the incidents of a house, as glass windows annexed with nails or otherwise to the windows, the wainscot fixed by nails, screws, or irons put through the posts or walls, tables, dormants, furnaces of lead and brass, and vats in a brew and dye-house standing and fastened to the walls, or standing in or fastened to the ground in the middle of the house, (although fastened to no wall), a copper, or lead, fixed to the house, the doors within and without that are hanging and serving to any part of the house, shall not go to the executor or administrator to be divided and sold from the house." So it is laid down in Noy's Maxims (h), “all chattels shall go to the executors, as vats and furnaces fixed in a brew-house or dye-house by the lessee; but if they be fixed by tenant in fee, the heir shall have them" (i). (e) Elwes v. Maw, 3 East, 51, in Lord Ellenborough's judgment. See also Lord Kenyon's judgment in Penton v. Robart, 2 East, 90, 91. (f) Pt. 2, c. 14, s. 1. (h) P. 51. (i) See also Swinb. Pt. 6, s. 7, Relaxations with respect to executor's right, as against the heir, to trade fixtures But in modern times some relaxations of the rule have obtained; which may be considered, 1st, with respect to fixtures put up by the tenant in fee for the purposes of trade; and 2ndly, with respect to fixtures put up by him for ornament or domestic convenience. As to trade fixtures, the first instance of departure from the old rigour was in the case of a cyder-mill, before C. B. Comyns, at the assizes at Worcester, where, upon an action of trover brought by the executor against the heir, the cyder-mill, though deep in the ground, and certainly affixed to the freehold, was held to be personal estate, and the jury were directed to find for the executor (k). This, in fact, is the only expressly decided case in favour of the right of the executor of tenant in fee to trade fixtures: although Lord Hardwicke, in Lawton v. Lawton (1), alluding to fire-engines set up in a colliery, said, "I think, even between ancestor and heir, it would be very hard that such things should go in every instance to the heir:" and Lord Ellenborough, in his judgment in Elwes v. Maw (m), recognises the principle of C. B. Comyns's decision. Its authority, however, has lately been denied in the House of Lords in Fisher v. Dixon (n); unless on the supposition that the cyder-mill in question was not annexed to the freehold (which it has always been assumed to have been in all the previous judicial discussions of the case).The case of Fisher v. Dixon has also negatived the doubt suggested by the dictum of Lord Hardwicke above cited: For it was there held by the House of Lords, that machinery affixed to the freehold by the owner in fee of certain land (purchased by himself), consisting of steam-engines, rails, and other fixtures, erected and used by him in the course of trade, for the purpose of working coal and iron mines in pl. 5. Wentw. Off. Ex. 149, 150, (k) Ex relatione Wilbraham, in Dudley v. Lord Warde, Ambl. 114, and by Lord Ellenborough in Elwes v. Maw, 3 East, 54. (1) 3 Atk. 15. (m) 3 East, 54. (n) 12 Cl. & F. 312, 325, 329, 331. the land, went to his heir as part of his real estate. And several learned peers laid down that the principle on which a departure has been made from the old rule in favour of trade has no application to a case between the heir and the executor (o). This decision is in accordance with that of Lawton v. Salmon (p), where an action of trover was brought by an executor against the tenant of the heir-at-law of the testator, to recover certain vessels used in salt-works, called saltpans: The testator, some years before his death, placed the salt-pans in the works; they were made of hammered iron and rivetted together; they were brought in pieces, and might again be removed in pieces; they were not joined to the walls, but were fixed with mortar to a brick floor; there were furnaces under them; they might be removed without injuring the buildings, though the salt-works would be of no value without them: The question was, whether the executor or the heir-at-law was entitled to them: Lord Mansfield, in delivering the judgment of the Court, after observing that the strict rule had been relaxed between landlord and tenant, and between tenant for life and remainder-man, thus proceeded:-" But I cannot find that between heir and executor there has been any relaxation of this sort, except in the case of the cyder-mill, which is not printed at large. The present case is very strong. The salt-spring is a valuable inheritance, but no profit arises from it, unless there is a salt-work, which consists of a building, &c., for the purpose of containing the pans, &c. which are fixed to the ground. The inheritance cannot be enjoyed without them. They are accessaries necessary to the enjoyment and use of the principal. The owner erected them for the benefit of the inheritance; he could never mean to give them to the executor, and put him to the expense of taking them away, without any advantage to him, who could only have the old materials, or a contribution from the heir (o) See post, p. 662. (p) 1 H. Black. 259, in a note to Fitzherbert v. Shaw. in lieu of them. But the heir gains 81. per week by them, On the reason of the thing, therefore, and the intention of the testator, they must go to the heir." In Trappes v. Harter (q), the question was, whether the machinery, which was the subject of the action, passed to the mortgagee under a mortgage deed, or vested in the assignees under a commission of bankruptcy: The bankrupts had carried on the business of calico printers, in partnership, at Catterall, near Garstang, in the county of Lancaster: Many years ago, the lands and buildings in question were purchased, and the conveyance was taken to one of the partners; but it was clear that the estate was treated throughout as belonging to the partnership: The machinery was erected by the partners, for the purpose of carrying on the partnership trade: It consisted principally of articles which could be removed without the slightest injury to the freehold: They were fixed by bolts and screws, so that they could be drawn off without any damage to the building: All the rest of the machinery was so fixed, that it was capable of being removed; and it was actually removed without any material injury either to itself or to the freehold: In taking the account of stock, the land and buildings were always placed under one head, and the machinery under another: In the part of the country where these premises were situated, it appeared that machinery of this description was constantly bought and sold distinctly from the freehold: It was held by the Barons of the Exchequer, that, looking at the particular terms of the mortgage deed, (which it is unnecessary to state with reference to the present inquiry,) the machinery in question did not pass by it; but that it formed part of the partnership estate, and passed to the assignees as such: And Lord Lyndhurst, C. B., in delivering the judgment of the Court, observed that it was clear, as between landlord and tenant, it might be removed by the tenant, if put there by him: as between heir and executor, it would have passed to the executor. His Lordship pro(q) 2 Crompt. & Mees. 153. S. C. 3 Tyrwh. 603. ceeded to observe, that applying the authorities of Lawton v. Lawton and Lawton v. Salmon, to the present case, the Court thought that this machinery, erected for the purposes of trade, in a neighbourhood where machinery of such description was commonly removed, and which was capable of removal without injury to the freehold, was not to be considered as belonging to the inheritance, but as part of the personal estate (r). It seems to have been held, that the custom of the country may extend the rights of the executor beyond the rules above stated. In Viner's Abridgment (8), it is said, "A granary built on pillars in Hampshire, is a chattel, and goes to the executors, and may be recovered in trover. This shall be understood according to the custom of the country. Coram Eyre, C. B., Summer Assizes, 1724, apud Winchester." with respect to executor's right, as against the heir, to fix tures put up for ornament or convenience: As to the right of the executor of tenant in fee to fix Relaxation tures set up for ornament or domestic convenience, the first infringement of the strict rule in favour of the heir, with respect to fixtures of this sort, appears to be in Squire v. Mayer, Trin. Term, 1701, where it was held by Lord Keeper Wright, that a furnace, though fixed to the freehold, furnace : and purchased with the house, and also the hangings nailed hangings : to the walls, should go to the executor and not to the heir; and so determined, says the report, contrary to Herlakenden's Case (t). (r) It should seem, however, that the above case was certainly not at all intended to interfere with the principle established by Baker v. Horn, 9 East, 215, viz. that fixtures affixed to the freehold are not "goods and chattels, in the order and disposition of the bankrupt," so as to pass to his assignees, under the bankrupt laws. The point decided in Baker v. Horn has been settled to be good law by numerous subsequent cases: See Clark v. Crownshaw, 3 B. & Adol. 804. Combs v. Beaumont, 5 B. & Adol. 72. Boydell v. M'Michael, 1 Crompt. M. & R. 177. (s) Tit. Executors, (U.) 74. See |