« EelmineJätka »
value of 5001. ; and where such estate exceeds that value, she now takes 5001. out of it, in priority to all persons entitled under the Statute of Distribution (p). And then (and subject to these special provisions in the widow's favour), the residue of the personal estate is distributable according to the former law, that is to say, one-half to the widow and the remaining one-half among the next of kin.
(p) Duret v. Charrière,  1 Ch. 912.
OF SOME MIXED OR IRREGULAR SUBJECTS OF PROPERTY.
We have thus taken a general survey of the law of property, under its two great heads of “real” and “personal.” These, as we have seen, are strongly distinguished from each other ; not only as regards the natural qualities of immobility on the one hand, and mobility on the other, but also as regards the legal incidents to which each class is respectively liable. There are, however, in the law of property, some few cases of a mixed character, with the consideration of which we will close the second book of these Commentaries ; that is to say, there are things real which are attended with some of the incidents of things personal, and there are things personal which are attended with some of the incidents of things real.
Among things real which have some of the legal incidents of things personal, we shall consider (1) emblements, (2) fixtures, and (3) shares.
1. Emblements are, as we have previously said (a), the growing crops annually produced by the labour of the cultivator. All vegetable growths, until they are actually severed from the soil, are, of course, in legal contemplation, part of the realty, not less than the soil itself ; but, upon severance, they change their character, and are converted into personalty (6). They are consequently governed, when in the first predicament, by all those rules, as to estate and title, which are incident to things real ; but when in the second predicament, they are governed by the
(a) Inte, bk. ii., pt. i., ch. iv.
(6) Re Ainslie (1885), 30 Ch. 1).
rules which attach to things personal. Thus trees, while still implanted in the ground, are parcel of the freehold, and as such will pass, on the death of the owner of the inheritance, to the heir or devisee ; but when felled or blown down, they become part of his personal estate, and belong on his decease, to his personal representatives on behalf of his next of kin or legatees. To this general doctrine, however, emblements or fructus industriales are an exception ; for these, even while still in union with the soil, follow, in several particulars, the nature of personal, as distinguished from real estate.
For, in the first place, as we have seen (c), emblements may lawfully be severed from the soil, and removed by the tenant whose industry has produced them, or his representatives, on the termination of his tenancy, provided that such termination was caused by an event which he cannot be reasonably held to have foreseen. It is not necessary to dwell any further on this point, which has been fully dealt with in earlier chapters.
In the second place, upon the death of a terre-tenant seised in fee, the emblements growing on his land at the time of his decease will not pass to the heir, but to the personal representatives of the deceased terre-tenant ; for which the reason seems to be, that they were sown with the intention of being reaped by himself, and of thus being ultimately converted into or forming part of his personal estate (d). And now that, in cases of inheritance, descent is traced, not from the person last seised, but from the last purchaser, the reason for the rule would appear to be still stronger than before. The law, however, maketh a distinction between an heir and a devisee. For the devise to a man of a particular piece of land will, unlike a descent, suffice to carry with it the emblements growing thereon at the testator's decease (e).
Thirdly, the emblements of a terre-tenant are subject,
(c) Ante, bk. ii., pt. i., ch. iv. (d) Wms. Erors., I. 623.
(e) Cooper v. Woolfitt (1857), 2 H. & N. 122.
like his movables, to be distrained upon for any arrears of rent that he may owe his landlord. Formerly, indeed, this was otherwise ; for, at common law, the emblements of a tenant were considered, for this purpose, as part of the freehold, and as such, not distrainable. But by the Distress for Rent Act, 1737 ($), landlords were empowered to take and seize, as a distress for arrears of rent, all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever, which should be growing upon any part of the demised premises, and the same to cut and lay up, preparatory to a sale, either upon the premises, or, if there be no convenient storing-place thereon, upon other land.
Finally, in case of a judgment against the terre-tenant, his emblements are liable to be taken upon a writ of fieri facias ; and this, not as the result of special statute, but simply because of the similarity which exists, in other particulars, between the law of personal property and the law of emblements (9).
2. Fixtures may be defined as things of an accessory character, annexed to houses or lands ; and they include not only such matters as grates in a house, or steamengines in a colliery (which follow in some respects the law of personal chattels), but such things also as windows and palings, which are for every purpose parcel of the realty. To be a fixture, however, the thing must not constitute a part of the principal subject-matter itself, e.g., the walls or floors of a house, being an intrinsic part of the house, are never described as fixtures ; and yet the fixture must be in some union or connection with the principal subject-matter, and not merely brought into contact with it, as in the case of a picture suspended on hooks against a wall, or a wooden barn resting, by its weight alone, upon a brick foundation (1).
() S. 8.
(g) Erany v. Roberts (1826), 5 B. & C., at p. 832; Re Woodham (1887), 20 Q. B. D. 40.
(h) Eles v. Vav(1802), 3 East, 55; but see Vorton v. Dashurood,  2 Ch. 497.
By an antient rule of the common law (the result, perhaps, of that paramount regard which in former times was paid to land as compared with personal property), every fixture, or thing annexed to the realty, became, immediately on the annexation, part of the realty itself,-the maxim being, quicquid plantatur solo, solo cedit (). The application of this maxim implied that, in general, the fixture was thereafter governed by the same law which applied to the land with which it was incorporated, and that it ceased altogether to follow the law applicable to personal estate. There are, however, numerous cases in which the contrary is now true, and in which the fixture now retains, after its annexation, the quality of a personal chattel, reason and convenience seeming to require that, with regard to them, the old common law rule should be qualified. And, accordingly, we find the law to be :
First, as between a tenant in fee's heir (or devisee) and his personal representatives, the fixtures will in general follow the land ; even such of them as have been put up merely for ornament or domestic use devolving to the real representative, inasmuch as they are not capable of removal without material damage to the freehold, and are essential to its enjoyment, if not in its natural, at least in its acquired or factitious, character (k). And the same rule seems to apply also as between these parties, to such fixtures as have been placed or erected for purposes connected with trade (1).
Secondly, as between the tenant of a particular estate and the person entitled in remainder, though in general the former is bound to commit no waste, but to keep the inheritance entire and unimpaired ; yet it would seem that trade fixtures, and also ornamental or domestic fixtures, if put up by himself, may be lawfully removed by him, or
(i) Re Ainslie (1885), 30 Ch. D. 485.
(k) D’Eyncourt v. Gregory
(1866), L. R. 3 Eq.382; Norton v. Dashwood, [1896) 2 Ch. 497.
() Fisher v. Dixon (1845), 12 Cl. & F. 312.