or rabbits in a warren, doves in a dove-house, pheasants and partridges in a mew, swans, though unmarked in a [193] private moat or pond, or kept in water within a manor, or at large, if marked, and in bees in a hive, or as it has been held by some authorities, though not in a hive, ratione soli, in respect of his ownership in the soil. He is, also, entitled to fish in a private pond or piscary. These various animals shall all go with the inheritance, for without them it is incomplete. (a) And such, we may remember, is the property that shall vest in the executor, if the testator had a lease for years in the land. (b)

With regard to chattels personal, and vegetable, not only timber trees, as oak, beech, chestnut, walnut, ash, elm, cedar, fir, asp, lime, sycamore, birch, poplar, alder, larch, maple, and horn-beam, but also trees of every other description belonging to the soil, and unless severed during the life of the ancestors, are the property of the heir. (c) So, likewise, are all species of fruits, if hanging on the tree at the time of his ancestor's death. Grass, also growing, though ready to be mown for hay, shall descend with the land to the heir; for these are either natural, or permanent profits of the earth. (d) He is also entitled to such hedges and bushes as are standing at that time. (e)

[194] But, as I have already stated, (ƒ) corn, which is raised by yearly cultivation, shall go to the executor, to compensate for the expence and labour of tilling, manuring, and sowing the lands, and for the encouragement of husbandry, which is of so public a concern. (g)

The same law, on a similar principle, extends to other emblements, as hops, saffron, hemp, and the like. (h)

Off.

(a) Harg. Co. Litt. 8. Com. Dig. Biens. B. 1 Roll. Abr. 916. Ex. 53. 11 Vin. Abr. 166. 2 Burn. Just. 369. 7 Co. 15 b. 3 Bac. Abr. 64. 2 Bl. Com. 427.

(b) Harg. Co. Litt. 8, note 10. Vide supra, 141, 148.

(c) Com. Dig. Biens. H. 3 Bac.

Abr. 64. Off. Ex. 59. Swinb. 934, 935, p. 7, s. 10.

(d) Swinb. 934, 935, p. 7, s. 10. (e) Off. Ex. 59. 3 Bac. Abr. 64. (f) Supra, 150.

(g) Off. Ex. 59. 3 Bac. Abr. 64. (h) Ibid.

It has been asserted by a learned writer, (i) that roots of all kinds, such as parsnips, carrots, turnips, and skirrets, shall go to the heir, since they cannot be taken without digging and breaking the earth, which must of necessity be a detriment to the inheritance. It seems, however, perfectly clear, that these articles, as requiring an annual cultivation fall within the like reasoning, which the law has adopted in regard to corn, and consequently shall belong to the executor. (k)

But things which produce no annual profit are not comprehended under the name of emblements; therefore, although the testator himself hath sown the land with acorns, or planted it with oaks, alders, elms, or other trees, they [195] shall not be classed as emblements, but shall belong to the heir. (1) So if the testator improved the natural produce, either by trenching, or by sowing hay-seed, such increase shall go to the heir; for the executors have no property in the natural produce, and in such instances that which was artificial cannot be distinguished from it. (m) Wall fruit also, though greatly improved by culture, seems to fall within the same principle and to be the property of the heir. But the executor, we have seen, is entitled to hops, though growing on ancient roots, for they are produced by manurance and industry. (n)

Although timber trees originally belong to the soil, yet, if A. seised in fee, sell the timber trees on his land to B., and B. die before they are felled, they shall belong to his executor. (o) So, if a man sell his land, reserving the timber trees, they remain in him by particular contract, as chattels distinct from the soil, and shall go to his executor. For, in both these cases, in construction of law, they are abstracted

(i) Off. Ex. 62, 63. Vide also Gilb. L. of Ev. 249.

(k) Harg. Co. Litt. 55 b. 2 Bl. Com. 123.

(1) 2 Bl. Com. 123. Com. Dig. Biens. G. 1 Harg. Co. Litt. 55 b.

(m) Com. Dig. Biens. G. 1, Gilb. L. of Ev. 249. Harg. Co. Litt. 56. (n) Harg. Co. Litt. 55 b. Cro. Car. 515. Vide supra, 150.

60.

(0) 3 Bac. Abr. 64. Off. Ex. 59,

from the earth, although they are not actually severed by the axe. (p)

But, if a tenant in tail sell the timber trees on his soil, such sale will not be effectual without docking the entail, unless they were actually felled in the lifetime of such [196] tenant, otherwise they will descend with the land to the issue. (q) So, if A. lease lands for life, or years, excepting the trees, they continue parcel of the inheritance, so long as they are annexed to the land, and descend with it to the heir. So, if a feoffment be made excepting the trees, and the feoffee afterwards buy them, they are re-annexed to, and become part of the inheritance. (r) So, where a lessee for years purchased trees growing on land, and had liberty to cut them within eighty years, and he afterwards bought the inheritance of the land and died; it was held that the executor should not have the trees, for although they were once chattels, yet by the purchase of the inheritance they were re-united to the land. (s)

Such personal chattels inanimate, as go to the heir with the inheritance, and not to the executor, are, for the most part, denominated heir-looms. The termination loom, in the Saxon language, signifies a limb, or member; consequently heir-looms denote limbs or members of the inheritance. They are such things as cannot be taken away without damaging, or dismembering the freehold. Whatever, therefore, is strongly affixed to the inheritance, and cannot be severed from it without violence or damage, quod [197] ab ædibus non facilè revellitur, is a member of the same, and shall pass to the heir, as chimney-pieces, pumps, tables and benches which have been long fixed. (t) The law is the same in regard to coppers, leads, pales, posts, rails, windowshutters, windows, whether of glass or otherwise, wainscots,

(p) 3 Bac. Abr. 64. Off. Ex. 60. (q) Ibid. Stukeley v. Butler, Hob. 173. 11 Co. 50.

(r) Com. Dig. Biens. H. 11 Co.

50. 4 Co. 63 b.

(s) 11 Vin. Abr. 168. Ow. 49. (t) 2 Bl. Com. 427, 428. Ld. Petre v. Heneage, 12 Mod. 520.

doors, locks, keys, mill-stones fixed to a mill, anvils, and the like. They are annexed to the freehold, and are held to form part of it. (u)

Although pictures and looking glasses generally go to the executor, as personal chattels, yet it has been held, that if they are put up instead of wainscot, they shall belong to the heir. He has a right to the house entire and undefaced. (x)

But at so remote a period as that of Henry the Seventh, it was adjudged, that if the lessee annex any chattel to the house for the purposes of his trade, he may disunite it during the continuance of his interest, if he can do so without prejudice to the freehold. And therefore, that if such lessee be a dyer, and erect a furnace in the middle of the floor not affixed to any wall, he, and by consequence his executor, may take it down during the term, if it can be removed without injury to the inheritance; that while the term continues, he is the [198] owner both of the floor and of the furnace, but that if it be not severed while his interest subsists, it goes to the lessor of his heirs, inasmuch as the lessee is not master of both the subjects of alteration. (y)

In modern times the doctrine of annexation has, on principles of public policy, been gradually relaxing; therefore, if things of this species can be removed without injury to the fabric of the house, or the soil of the freehold, they shall in general, be the property of the executor. (~) Thus, modern tables, although fastened to the floor, grates, irons, ovens, jacks, clock-cases, in whatever mode annexed to the freehold, have by more recent cases been held to belong to the executor. (a) So also have hangings, tapestry, beds fastened to the ceiling, and iron backs to chimneys. (b) So, like

(u) 4 Burn. Eccl. L. 256. 3 Bac. Abr. 63. Off. Ex. 62. 4 Co. 63, 64. Swinb. p. 6, s. 7.

(a) L. of Test. 380, 381. Cave v. Cave, 2 Vern. 508.

(y) 3 Bac. Abr. 63. Keilw. 88. Ow. 70, 71. Off. Ex. 60, 61. Exparte Quincy, 1 Atk. 477. Poole's

case, Salk. 368. L. of Test. 380.

(z) 3 Bac. Abr. 63 in note. Lord Dudley v. Lord Warde, Ambl. 113. Harvey v. Harvey, 2 Str. 1141. (a) 4 Burn. Eccl. L. 257.

(b) 4 Burn. Eccl. L. 256, 259. L. of Ni. Pri. 34. Harvey v. Harvey, 2 Str. 1141. Ex-parte Quincy, 1 Atk.

wise in favour of trade, brewing vessels, vats for dyers, and soap-boilers' coppers. So also furnaces, though fixed to the freehold, and purchased with the house. (c) It has also been ruled, that a cyder mill erected on the land shall go to the executor, and not to the heir. And in a case where the litigating parties were the executor of the tenant for life, and [199] the remainder-man, the Lord Chancellor seemed to be of opinion that a fire-engine set up for the benefit of a colliery, as between heir and executor, might in some instances be considered as personal property. (d) Such latitude encourages improvements, and is beneficial to trade. But if the subject be not capable of removal without injury to the freehold; as, if a furnace is so affixed to the wall of a house as to be essential to its support, it shall not be taken away by the executor. (e)

The ancient jewels of the Crown are also held to be heirlooms, for they are necessary to maintain the state, and to support the dignity of the existing sovereign. (ƒ)

So, also the collar of S. S. is an heir-loom, and shall go to the heir. (g)

There are also other personal chattels, which descend to the heir in the nature of heir-looms; as ancient portraits of former owners of the mansion, though not fastened to the walls, a monument or tombstone in a church, or the coat armour of his ancestor there hung up, with the pennons and other ensigns of honour suited to his degree. (h) And the court will order an inspection of articles claimed by the plaintiff as heir-looms, in a chest at the bankers of the defendant, who insists by his answer that he has a lien on the

477. Beck v. Rebow, 1 P. Wms. 94.

(c) Poole's case, Salk. 368. L. of Ni. Pri. 34. Ex-parte Quincy, 1 Atk. 477. Lawton v. Lawton, 3 Atk. 14, 16. 11 Vin. Abr. 167, 172. Squier v. Mayer, 2 Freem. 249. Harg. Co. Litt. 53, note 5.

(d) Lord Hardwicke in Lawton

v. Lawton, 3 Atk. 15. See also Elwes v. Maw, 3 East T. Rep. 38.

(e) Off. Ex. 61. 4 Burn. Eccl. L. 256. 11 Vin. Abr. 166.

(f) 2 Bl. Com. 428. Harg. Co.

Litt. 18 b.

(g) 11 Vin. Abr. 167. (h) 2 Bl. Com. 429. Litt. 18 b.

Ow. 124. Harg. Co.