were kept alive in any room, cage, or such like place: so fish in a trunk; also young pigeons, though not tame, being in the dove-house, and not able to fly out b. Also hounds, greyhounds, spaniels, and the like, as they may be valuable, and may serve not only for delight, but for profit, shall go to the executors or administrators . And they shall have all leases for years, though they may be for 1000 years, and all lands extended on any judgment, statute, or recog nizance, and all arrears of rent due at the death of the testator, or intestate, the latter being treated on in the preceding section. Likewise securities for money belong to executors and administrators f. And they shall have all estates pur auter vie, that is, estates held during the life of another, as before mentioned. These being distributable by the statute 14 Geo. II. c. 20, shall, where a man dies intestate, and they were not made to him and his heirs, be distributed in the same manner as his personal estate; but it is otherwise if made to the intestate and his heirs. Corn sown will also go the executor or administrator, and not to the heir, so also will hops, though not sown, if planted, and saffron and hemp. This being what is usually styled emblements, the doctrine of which extends not only to corn sown, but to roots planted, or other annual artificial profit", as clover, saint-foin, and the like, which was sown by the deceased. But it is otherwise of fruit-trees, grass, and the like; which are not planted annually at the expence and labour of the tenant, but are either the permanent or natural profit of the earth. So these latter go to the heir, and not to the executor or administrator. And Mr. Wentworth thinks, b 4 Burn's Eccles. Law, 240. c Ibid. d Fitz. Nat. Brev, 120.-An executor or administrator, having a lease, which was granted to the testator or intestate, should attend to the covenants and provisoes contained therein; for if a lease contain a proviso that the lessee and his administrators shall not set, let, or assign over, the whole or part of the pre mises without leave in writing, on pain of forfeiting the lease, the administratrix of the lessee cannot underlet without incurring a forfeiture. e 4 Burn's Eccles. Law, 242. Law of Test. 341. f 3 Bro. Cha. Rep. 80. 8 4 Burn's Eccles. Law, 242. 12 Black. Com. 123. i 4 Burn's Eccles. Law, 242. k 2 Black. Com. 123. that roots in gardens, as carrots, parsnips, turnips, skirrets, and such like, (which he says may be of value in gardens about London, and some great towns,) shall not go to the executor, but to the heir, because they cannot be taken without digging and breaking the soil'. But it seems very clear by Lord Cokem, and Sir William Blackstone", that these shall go to the executor or administrator, and not to the heir. If a man seised for life, or in fee, or tail, in his own right, or in the right of his wife, and sows the ground with corn, but dies before it is ripe, his executors or administrators shall have it, and not the wife or heir: but grass ready to be cut for hay, apples, pears, and other fruit on the trees, shall not go to the executors or administrators. And the reason of the difference is, because the former comes not merely from the soil, without the industry or manurance of man, as the latter doth. And if the wife had a lease for years, as executrix, and the husband sows the ground with corn, and dies before it is ripe, the corn shall go to his executors or administrators, or at least, so much as is more than the yearly rent of the land: but if the husband and wife were the joint tenants of the land, she shall have the corn, and not his executors. And if a parson sows his glebe land, and dies before severance, and after his successor is admitted, instituted, and inducted, before the corn is cut, it shall go to the executors or administrators of the deceased, who must pay the tithes thereof, to the successor P (5). 1 Went. Off. Exec. 62. m Co. Litt. 55. n 2 Com. 122. • Law of Test. 342. (5) The general rule of law applicable to cases of this description is, that where a tenant of land has an uncertain interest, which is determined either by the act of God or the act of another, there he shall have emblements; but that is not so when the tenancy is determined by his own act. That is laid down in a variety of instances, which will be found in Comyn's Digest, Tit. Biens, G. 2. As where the lessee surrenders, or a woman who is tenant durante viduitate mar Things that are affixed to the tenement, and are made parcel of the freehold, belong to the heir, and not to the executor or administrator; as the glass annexed to the windows of the house, which is parcel of the house, and shall descend as parcel of the inheritance to the heir, and the executors or administrators shall not have it. And although the lessee himself, at his own cost, cause the glass to be put into the windows, yet, the same being parcel of the house, he cannot take it away afterwards, without danger of punishment for waste. Neither is there any material difference in law, whether the glass was annexed to the window with nails, or in any other manner, either by the lord or by the tenant; for being once affixed to the freehold, the same cannot be removed by the lessee, but shall belong to the heir, and not to the executors or administrators ". So in respect to wainscot, this being annexed unto the house, either by the lessor or by the lessee, is parcel of the house. And there is no difference whether it be affixed with great nails or little nails, or by screws or irons thrust through the posts or walls of the house; for howsoever it be affixed, either in manner aforesaid, or in any other manner, it is parcel of the freehold; and if the executors or administrators shall remove it, they are punishable for the same: and not only glass and wainscot, but any other such like thing affixed to the freehold, or to the ground, with mortar and stone; as tables dormant, leads, mangers, and such like; these also belong to the heir, and not to the executor or administrator. As do also mill-stones, ries, or the estate determines by forfeiture, condition broken, &c. In all these cases they are not entitled to emblements. See also Co. Litt. 55. b.; and on the same principle a parson, who resigns his living, is not entitled to emblements. Bulwer v. Bulwer, 2 Barn. & Ald. 470. anvils, doors, keys, window-shutters; none of these being chattels, but parcels of the freehold, or thereto pertaining, shall not go to the executors or administrators. t An executor taking away a furnace which was set up in the middle of a house, and not fixed to any wall, the heir brought an action of trespass against him, and it was adjudged for the heir, that this should go as part of the freehold and inheritance to the heir. But in the case of Day and Austin, Walmsley said, that Lord Dyer's opinion was, that where the furnace is not affixed to the wall the lessee might within his term, take it away; but not if it was fixed to the wall, for there it would strengthen the house". Pictures and glasses, though, generally speaking, not part of the freehold, yet if put up instead of wainscot, or where otherwise wainscot would have been put up, shall go to the heir; for the house ought not to come to the heir maimed or disfigured. But in the case of Harvey and Harvey, M. 14. Geo. II. in trover by the executor against the heir, it was held by chief justice Lee, that hangings, tapestry, and iron backs to chimneys, belonged to the executor; who recovered accordingly against the heir. And 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 seems that the executor or administrator shall have them; as tables, although fastened to the floor; furnaces, if not made part of the wall, grates,iron ovens, jacks, clockcases, and such like, although fixed to the freehold by nails or otherwise ›. In the case of Lawton and Lawton, 1743, the question was, whether a fire-engine, set up for the benefit of a colliery by a tenant for life, shall be considered as personal estate, and go to the executor; or fixed to the freehold, and go to a remainder man2. For the plaintiff (who was a cre t Went. Off. Exec. 61. u Law of Test. 342. x Ibid. y 4 Burn's Eccles. Law, 244. z A remainder man, is he who has the estate by virtue of some limitation, made either by will or deed, As if a man seised in fee sim ditor of the tenant for life) evidence was read, to prove that the fire-engine was worth, to be sold, 350l. and that it is customary to remove fire-engines. And it was urged, that the testator had died greatly in debt; and it would be hard, when he had been laying out his creditor's money in erecting this engine, that they should not have the benefit of it, but that the strict rule of law should take place. And it was compared to the case of a cyder-mill, which is let in very deep into the ground, and is certainly fixed to the freehold; and yet lord chief baron Comyns, at the assizes at Worcester, upon an action of trover brought by an executor against the heir, was of opinion, that it was personal estate, and directed the jury to find for the executor. And lord chancellor Hardwicke, on the question of the fire-engine, whether it should be considered as personal estate, and consequently applied to the increase of assets for payment of debts, says, it appears in evidence, that in its own nature it is a personal moveable chattel, taken either in part or in gross before it is put up. But then it is insisted, that fixing it, in order to make it work, is properly an annexation to the freehold. 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 grounds 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. What would have been held to be waste in Henry the Seventh's time, as removing wainscot fixed only by screws, and marble chimneypieces, is now allowed to be done. Coppers, and all sorts of brewing vessels, cannot possibly be used, without being ple deviseth or granteth lands to A. for life, and after the determination of A.'s estate for life, limiteth it to B. and his heirs for ever. Here A. is a tenant for life, and B. a remain. der man in fee; further mention whereof is made in the appendix to this work. See Remainders and Re-versions, in the Index. |