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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
(0) 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 (s), 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
As to the right of the executor of tenant in fee to fix 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.
The next case on the subject was Cave v. Cave (u), decided by the same Judge, in Trin. Term, 1705. The Lord Keeper was there of opinion, that "although pictures and glasses, generally speaking, are part of the personal estate, yet, if put up instead of wainscot, or where otherwise wainscot would have been put, they shall go to the heir: The house ought not to come to the heir maimed and disfigured: Herlakenden's Case: Wainscot put up with screws shall remain with the freehold" (v).
But in Beck v. Rebow (x), determined in the subsequent year, a bill was filed in Chancery, upon a covenant made by a testator, to convey a house and all things affixed to the freehold thereof: The bill alleged that the defendant, the devisee in trust of the house, had taken away, among other things, the pier glasses, hangings, and chimney glasses, and it was urged for the plaintiff, that these hangings, pier glasses, and chimney glasses, were as wainscot, being fixed with nails and screws to the freehold that there was no wainscot under them; and as they would have gone to the heir and not the executor, a fortiori, they would go to the plaintiff, who was as a purchaser of the house; and Care v. Cave was cited: But Lord Keeper Cowper was of a different opinion; saying, that hangings and looking glasses were only matters of ornament and furniture, and not to be taken as part of the house or freehold.
Perhaps a deduction may be made from these cases, which may reconcile their apparent discrepancies, viz., that generally, pictures and looking glasses shall go to the executor as personal estate, although, strictly speaking, they may be so fixed by nails and screws to the walls, as to be attached to the freehold :-but that if they are let into the
(u) 2 Vern. 508.
estate, but are to go along with the house, and be taken as part thereof, and do decree the same accordingly." Reg. Lib. 1704. A. fol. 535. See Mr. Raithby's note to 2 Vern. 508.
(x) 1 P. Wms. 94.
wainscot, so as to take the place of panels of it, they shall go to the heir; because they could not be removed by the executor without disfiguring the house. The true reason why they have been held to be removeable, probably is, that, on the principle already stated, (ante, p. 649,) they were never part of the freehold.
Lord Hardwicke, in Lord Dudley v. Lord Warde (y) ornamental speaking of marble chimney pieces, says, that as between pieces: landlord and tenant, they are removable by the latter, if erected by him, but this does not hold between the heir and the executor. They are removeable, it should seem, not because they are marble, but because they are ornamental (z).
The cases of relaxation were followed by Harvey v. tapestry: Harvey (a), in which it was held by C. J. Lee, at Nisi Prius, in trover by an executor against the heir, that hangings, tapestry, and iron backs to chimneys, belonged to the iron backs to executor, who recovered accordingly against the heir.
The inference drawn from these decisions, by a writer of tables, ovens, considerable accuracy (b), is this: The law seems now to be held not so strict as formerly, and if these things can be taken away without prejudice to the fabric of the house, it seemeth that the executor shall have them as tables, although fastened to the floor; furnaces, if not made part of the wall; grates, iron ovens, jacks, clock-cases, and such like, although fixed to the freehold by nails or otherwise.
of judges in recent cases:
On the other hand, the Common Law Judges have, in several recent instances, incidentally stated the old rule as existing with scarcely any relaxation, between the executor and the heir. Thus, in Winn v. Ingilby (c), the question was, whether the Sheriff had a right to take in execution, under a fieri facias, some fixtures, in a house which was the plaintiff's freehold, consisting of set pots, ovens, and ranges: The Court decided that the Sheriff had no right: set pots, ovens, For these were fixtures which would go to the heir, and not