Executors ought not to apply them unnecessarily to the payment of debts. Chattels which 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). 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 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, 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). 2. Fixtures. 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, atur solo, solo quicquid plan cedit. What is an annexation of a chattel to the freehold : It will perhaps be convenient to consider in the first place, what is such an annexation to the freehold as will bring a chattel within the general rule; and then to proceed to inquire, in what cases the rule is relaxed with respect to an executor or administrator.-In order to constitute such an annexation it is necessary that the article should be let into or united to the land, or to substances previously connected therewith. It is not enough that it has been laid upon the land, and brought into contact with it: The rule requires something more than mere juxta-position; as, that the soil shall have been displaced for the purpose of receiving the article, or that the chattel should be cemented, or otherwise fastened to some fabric previously attached to the ground (r). As an illustration may be mentioned in the case of Culling v. Tuffnal (s) before Treby, C. J., at Nisi Prius, where it was holden that the tenant who had erected a barn upon the premises, and put it upon pattens and blocks of timber lying upon the ground, but not fixed it in or to the ground, might take it away at the end of his term (t). On the other hand, where the tenant had erected a veranda, the lower part of which was attached to posts which were fixed in the ground, Abbott, J., held, that the tenant could not remove any part of it (u). In the case of R. v. Londonthorpe (x), where a tenant had built on part of the land a post windmill constructed upon cross traces, laid upon brick pillars, but not Hardwicke, C., in Dudley v. Warde, (r) Treatise on Fixtures, p. 2. (t) In Buller, it is said to have have done so without any custom; for the terms of the statement exclude the things from being considered as fixtures. (u) Penry v. Brown, 2 Stark. N. P. C. 403. In this case the tenant had covenanted to repair and keep in repair the premises, and all the erections, buildings, and improvements, which might be erected thereon during the term, and yield up the same in good and sufficient repair. (x) 6 T. R. 377. attached or affixed thereto; the Court held, that the windmill was a mere chattel, and not to be considered as connected with the land (y). And generally, where the buildings are not let into the soil, but merely rest upon blocks or pattens, they continue mere chattels (2). It is obvious, that, in similar cases, where it is a conclusion of fact that the connection with the soil does not amount to an actual annexation, the property continues in every respect a mere chattel, and will pass as such to the executors and administrators. Moreover, the object and purpose of the annexation must be regarded: For if a chattel be fixed to a building, merely for the more complete enjoyment and use of it as a chattel, it still, it should seem, remains a chattel, notwithstanding it is annexed to the freehold; and is never a part of it, any more than a carpet which is attached to the floor by nails for the purpose of keeping it stretched out: And on this principle it was held, that cotton spinning machines, screwed into and fixed firmly to the floor, were chattels, and distrainable for rent (a). But there may be a sort of constructive annexation of a constructive (y) So in R. v. Otley, Suffolk, 1 Barn. & Adol. 161, a pauper rented a windmill, and a brickbuilt cottage and garden, at the rent of 30%. per annum for six years, and during that time held and occupied the same, and actually paid that rent, and was rated to and paid the rates for the relief of the poor: The cottage and garden, with the mill, were together of more than the annual value of 10%., but exclusive of the mill, they were not of that annual value: The mill was of wood, and had a foundation of brick; but the wood-work was not inserted in the brick foundation, but rested upon it by it's own weight alone: No part of the machinery of the mill touched the ground or any part of the foundation: It was held that the wind mill, not being affixed to the free- 21. (z) Nayler v. Collinge, 1 Taunt. (a) Hellawell v. Eastwood, 6 Exch. 295, 10 Exch. 508, 520. See also Davis v. Jones, 2 B. & A. 165. annexation: In what cases executors are entitled to chattel not actually affixed to the freehold as if a man has a mill, and the miller takes the stone out of the mill, to the intent to pick it, to grind the better; although it is actually severed from the mill, yet it remains parcel of the mill, and will go to the heir: The same law of keys, and (in some sort) of doors, windows, rings, &c., which, although they are distinct things, shall go with the inheritance of the house (b). So the sails of a windmill are parcel of the freehold, and shall go to the heir, and not to the executor (c). It has been laid down, that dung in a heap is a chattel, and goes to the executors; but if it lies scattered upon the ground, so that it cannot well be gathered without gathering part of the soil with it, then it is parcel of the freehold (d). The second branch of the inquiry respecting fixtures remains to be investigated, viz., when chattels personal sever fixtures: have been affixed to the freehold, and have thus lost their chattel character, under what circumstances the executor or administrator of the person who affixed them is entitled to sever them, and to reduce them again to a state of personalty, so as to form part of the estate of the personal representative. 1. Right of the 1. The subject will first be considered as between the executor of tenant in fee executor or administrator, and the heir of tenant in fee. In this case, the old rule of law above mentioned, "quicquid plantatur solo, solo cedit," still obtains with some rigour in favour of the inheritance, and against the right to disannex therefrom, and consider as a personal chattel, any thing which has been affixed thereto; whereas, in the case as between the executors of tenant for life or in tail, and the remainder-man or reversioner, the right to the fixtures is considered more favourably for the executors; and in the case as between landlord and tenant (which, although foreign to this Treatise, it will be necessary in some measure to to fixtures as against the heir : (b) Liford's case, 11 Co. 50, b. (d) Yearworth v. Pierce, Aleyn, 32. S. C. nomine Carver v. Pierce, Sty. 66. See Higgon v. Mortimer, 5 C. & P. 616, |