pictures: pier-glasses: 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 Cave 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 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 chimneyspeaking 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 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. chimneys: tables, ovens, jacks, clockcases. Contrary dicta 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 ranges: coppers, blinds: the executor, and they were not liable to be taken as goods and chattels under an execution. So in Colegrave v. Dias Santos (d), which was trover for articles of three classes; the first, admitted to be clearly annexed to the inheritance ::stoves, cooling the second, consisting of stoves, cooling coppers, and blinds ; and the third, not fixtures at all; Bayley, J., said, “The general rule relating to the right of fixtures, is that between the heir and the executor; and as between them, the second class of articles would belong to the heir." In the same case, Abbott, C. J., said, "The rule of law is most strict between the heir and the executor: According to that rule, the articles in the two first classes would be considered as a parcel of the freehold." And in the King v. St. Dunstan (e), where, in a settlement case, the question was whether certain fixtures, consisting of a stove, cupboards, and grates, (the stove and grates fixed with brickwork in the chimney places, and the cupboards standing on the ground, and supported by holdfasts, and all removable without doing any injury to the freehold, except leaving a few marks of nails) were parcel of a demised tenement; the Court held that they were, and Bayley, J., said, “ Although these fixtures, if they belonged to the tenant, might have been removed by him during the term, yet, as they actually belonged to the landlord, they were parcel of the freehold, and would have gone to his heir, and not to his executor." stoves, grates, cupboards. From these cases, it should seem, that the law is by no means clearly settled respecting the right of the executor of tenant in fee to fixtures set up for ornament or domestic convenience. 2. It is now proper to view the subject of Fixtures as between the executor and the devisee of a tenant in fee. The general rule is, that a devisee shall take the land in the same condition as it would have descended to the heir and consequently he will be entitled to all articles that are (d) 2 Barn. & Cress. 76. (e) 4 B. & C. 686. S. C. 7 D. & R. 178. affixed to the land, whether the annexation takes place before, or subsequent to the date of the devise and as to those fixtures which the executor may claim against the heir, he would be equally entitled against a devisee (ƒ).— However, it will be recollected that in the analogous case of Emblements, while the heir is excluded in favour of the executor, the devisee has been held to be entitled to them upon the presumed intention of the testator (g). There seems no doubt but that if, from the nature or condition of the property devised, it is apparent that the intention was that the fixtures should go along with the freehold to the devisee, they will pass to him, although they are of such a sort that the executor might have been entitled to them as against the heir. Thus, where the devise was of the testator's copyhold estates, which consisted, inter alia, of a brew-house and malt-house, let on lease together with the plant and utensils, it was held that the plant passed with the brew-house, on the ground that the testator intended to devise the plant as well as the shell of the brew-house; that without the plant, the walls would be of no use; and that it was material that the whole was, at the time of making the Will, in lease together (h). 3. The subject now proceeds to the right to fixtures of the executor of tenant for life or in tail, as against the reversioner or remainder-man : and the division employed in considering the right of the executor of tenant in fee, will here be resorted to: viz. 1. The claim to fixtures set up by the particular tenant for purposes of trade. 2. The claim to fixtures put up by him for ornament or domestic convenience. (f) Treatise on Fixtures, 198. (g) See ante, p. 634. (h) Wood v. Gaynon, 1 Ambl. 395. See Lushington v. Sewell, 1 Sim. 435. See also, as to whether fixtures shall pass by a grant of the freehold to which they are affixed, Place v. Fagg, 4 Man. & Ryl. 277. Hare v. Horton, 5 B. & Adol. 715. Trappes v. Harter, 2 Crompt. & as to trade fixtures: Since the law is more indulgent in this respect to the executor of the particular tenant, than to the executor of the tenant in fee, it is clear that the authorities already mentioned, which are in favour of the executor's right, as against the heir, are equally so in favour of it, as against the remainder-man or reversioner. In addition to these, there are cases, with respect to trade fixtures, in which the rights of the personal representatives of the tenant for life or in tail have been expressly considered. In Lawton v. Lawton (i), it was held that a fire-engine, set up for the benefit of a colliery, by the tenant for life, should be considered part of his personal estate, and go to his executor for the increase of assets in favour of creditors: And Lord Hardwicke, in giving his judgment, said, "It appears in evidence that, in its own nature, the fire-engine is a personal moveable chattel, taken either in part, or in gross, before it is put up; but then it has been insisted, that fixing it, in order to make it work, is properly an annexation to the freehold. "To be sure, in the old cases, they go a great way upon the annexation to the freehold; and, so long ago as Henry the Seventh's time, the Courts of Law construed even a copper and furnaces to be part of the freehold. Since that time, the general ground the Courts have gone upon, of relaxing this strict construction of law, is, that it is for the benefit of the public to encourage tenants for life to do what is advantageous to the estate during their term." In another part of his judgment, his Lordship observed, "It is true, the old rules of law have indeed been relaxed, chiefly between landlord and tenant, and not so frequently between an ancestor and heir-at-law, or tenant for life and remainder-man. But, even in these cases it does admit the consideration of public conveniency for determining the question. "One reason that weighs with me is, its being a mixed case, between enjoying the profits of the land and carrying (i) 3 Atk. 13. |