Part I. Chattels limited as heir-looms. the estate is holden. Thus an ancient horn, where the tenure of the land is by cornage, shall always descend to the heir (a). But things of this description seem rather to resemble charters of inheritance; or they might, perhaps, more properly be ranked among some of the species of possessions which are treated of in the ensuing pages. But further, a testator may by his will constitute what has been called a quasi heir-loom. That is to say, he may devise, or limit in strict settlement, an estate and capital mansion, together with personal property, as the plate, pictures, library, and furniture therein, such plate, &c., to be enjoyed, together with the house and estate, inalienable by the devisees in succession, so far as the law will allow (6). Limitations of this sort depend upon the principles of executory devises, and the doctrines of equity; for a remainder, in the strict sense of the term, can only be limited of a freehold estate. This subject has given rise to many questions of considerable nicety; and it will be sufficient, on the present occasion, to observe generally, that upon such a devise or settlement, the absolute interest in the chattels, subject to the interest for life which may be created in them, will vest in the person who is entitled to the first estate of inheritance, whether in tail or in fee; and upon his death the property will devolve upon his personal representative (c). (a) Pusey v. Pusey, 1 Vern. 273. As to tenure by cornage, vide Co. Lit. 107 a. Of the Pusey and other horns, as a charter or instrument of conveyance, see several curious particulars in the Archæologia, vol. 3, p. 1 et seq. And see id. vol. 1, p. 168, vol. 5, p. 340, vol. 6, p. 42. (b) Wooddeson, Vin. Lect. vol. 2, p. 380. See Cadogan v. Kennett, Cowp. 432; Foley v. Burnell, Cowp. 435, in notis; Bill v. Kinaston, 2 Atk. 81; Richards v. Baker, id. 320; Slanning v. Style, 3 P. Wms. 334. And see Fearne, Cont. Rem. 407 (10th ed.); Harg. Co. Lit. 18 b (N. 109). (c) The several decisions upon this subject are collected in Roberts' Treatise on Wills, vol. 2, p. 295 et seq.; Jarman on Wills, vol. 2, p. 577 et seq. (4th ed.; Williams' Execu apart from With respect to heir-looms properly so called, viz., those Chap. IV. s. 3. depending on custom, it appears that they cannot be de- Heir-looms vised away from the heir; that is to say, when the inherit- not devisable ance to which they belong descends to him. For Lord the estate. Coke lays it down, that "if a man be seised of a house, "and possessed of divers heir-loomes that by custome have "gone with the house from heire to heire, and by his will "deviseth away the heir-loomes, this devise is void" (d). Upon this it has been observed by Professor Woodeson in his Vinerian Lectures (e), that the opinion of Lord Coke is founded upon a decision in 1 Hen. 5. 108, which, he thinks, being prior to the Statute of Wills, could only amount to a determination against such a devise of heirlooms separately from the house by way of personalty; and he supposes that at present they might be devised as realty distinct from the estate. Upon reference, however, to the passage in Co. Lit. it appears, that Lord Coke grounds his opinion upon a principle which applies as well to a devise of realty as of personalty: viz. that the custom vests the property in the heir instantly upon the death of the testator, and takes place of the devise, which has effect only after the death of the testator. And although this reasoning has not been universally assented to, yet the doctrine appears to have been recognized by many subsequent authorities (ƒ). The owner of the inheritance, however, may, during his life, sell or dispose of these customary heir-looms, as he tors, p. 731 (8th ed.). The Chancery Division had formerly no jurisdiction to order a sale of such quasi heirlooms. D'Eyncourt v. Gregory, 3 Ch. D. 635. But see now 45 & 46 Vict. c. 38, s. 37. (d) Co. Lit. 185 b. So, per Lord Coke, the crown jewels are not devisable by testa F. ment, Co. Lit. 18 b. (e) Vol. 2, p. 380. Com. Dig. tit. Biens (B.); Harg. Co. Lit. 18 b (note), and 185 b; Tipping v. Tipping, 1 P. Wms. at p. 730, per Lord Macclesfield, C. And see Mr. Serjt. Hill's MS. note, 14 Vin. Ab. 290, in Linc. Inn. Lib. S May be granted away by the owner; or devised with the freehold. Part I. to the heir. may of the timber of his estate (g). And if he devise the house away from the heir, it is presumed that in this case the heir-looms would pass with the house to the devisee (h). OF DEER, FISH, ETC. AS INCIDENT TO THE INHERITANCE. There is another description of property, which the law considers to be so appropriated to, and so necessary to the well-being and enjoyment of the inheritance, that although it is in itself of a personal nature, yet it always accompanies the land and vests in the heir, and does not pass to the Fish belong personal representative. For, as it is said by the old writers, if a man buy divers fishes, as carps, breames, tenches, &c., and put them in his pond, and dieth, in this case the heir who has the water shall have them, and not the executors; but they shall go with the inheritance, because they were at liberty, and could not be gotten without industry, as by nets, and other engines (¿): otherwise, however, it is, if they are in a trunk, or in a net, or the like; for then they are severed from the soil (j). So deer, So likewise, of deer in a park, conies in a warren, and conies, swans, doves in a dove-house (); and, according to some autho &c. (g) 2 Bl. Com. 429. (h) That, if an estate be devised in tail with remainders, the devise over is good as to the heir-looms as well as to the estate, see Mr. Serjt. Hill's MS. note, 14 Vin. Ab. 291. (i) Co. Lit. 8 a; Liford's case, 11 Co. at p. 50 b; Swinb. Wills, 759; Keilw. 118; 4 Leon. 240; Greye's case, Owen, 20; Parlet v. Cray, Cro. Eliz. 372; 1 Roll. Ab. tit. Executors, p. 916; Com. Dig. tit. Biens (B.); Wentworth's Off. Executors, p. 127. (j) Id. ib.; 3 Bac. Ab. tit. Executors, p. 494; Com. Dig. tit. Biens (F.). (k) Note (i) sup.; Case of Swans, 7 Co. at p. 17 b. See also Yr. Bk. 18 Ed. 4, p. 14; Godolph. Orph. Leg. p. 126; Noy, Max. pp. 230, 240; 11 Vin. Ab. tit. Executors, p. 166. And see R. v. Townley, L. R., 1 C. C. R. 315. It would appear that the above rule respecting deer must be understood only of deer in legal parks, i. e. parks by grant or prescription. See per Willes, C. J., in Davies v. Powell, Willes' Rep. 46. And even in such parks deer may be so tame and reclaimed from their natural state as to pass to the executors as personal property, rities, pheasants and partridges in a mew; swans, though Chap. IV. s. 3. unmarked, in a private moat or pond, or kept on water within a manor, or at large, if marked; and bees in a hive; all which, as is said by these authorities, shall go along with the inheritance: and the reason assigned is, because without them, the inheritance is incomplete (7). And these things are considered in law so much a part of the inheritance, that the destruction of them is waste. And therefore if a tenant for life of a park, vivary, warren, or dove-house, kills so many of the deer, fish, game, or doves, that there is not sufficient left for the stores, it is waste (m). It is said in Swinburne's Treatise on Wills (n), that hawks and hounds belong to the heir with the estate: Pro Morgan v. Earl of Aberga- (1) See the preceding notes, and Shep. Touch. 469. Qu. as to pheasants, &c., in a mew? A mew is properly a place for and keeping or mewing up fal- (m) 1 Cru. Dig. tit. 3, chap. 2, § 20; Vin. Ab. tit. Waste (E.); Co. Lit. 53 a. (n) Part 7, § 10, p. 938. Hawks and hounds belong to the heir. Part I. Otherwise where the testator has terest; Noy is an authority to the same effect (0); and he says, that by a grant of all goods and chattels, neither hawks nor hounds nor other things feræ naturæ shall pass, and the heir shall have them. It is presumed, however, that at the present time the law is otherwise with respect to this description of property (p). It should be observed that in these cases the testator is supposed to have the inheritance in the park, pond, &c.; a chattel in consequently the question is between the heir succeeding to the ancestor's estate, and the executor who takes no interest whatever in the land. But the case will be different if the testator has only a term of years in the premises; for then if he dies before his term is expired, as his executor succeeds to his interest in the land, he will also have the deer, &c., with the land to which they belong. For in this case they pass to the personal representative as accessory chattels following the state of the principal; and the heir can have no right to the interest in the land which is itself personalty (9). In like manner, if the testator have any tame deer, rabbits, pheasants, partridges, pigeons, &c., they shall go to the executors: and though they were not Or the deer, &c., are tame. (0) Noy, Max. p. 240; id. pp. 144, 230. (p) See Went. Off. Executors, 143; Godolph. Orph. Leg. pt. 2, ch. 13, and pt. 3, ch. 21; 3 Bac. Ab. tit. Executors (H.), p. 485. It is said to be to this day a branch of the king's prerogative upon the death of every bishop, to have his mew or kennel of hounds (muta canum, meute de chiens), or a composition in lieu thereof, 4 Inst. 338; Swinb. Wills, pt. 2, § 26; 2 Bl. Com. 413; Cowell's Dict. Upon this subject see Spelm. Rem. p. 117, in the Answer to the Apology of Archbishop Abbot for shoot ing the keeper of Bramsil Park while hunting. (q) Went. Off. Executors, 127; Godolph. Orph. Leg. pt. 2, ch. 13. And see Harg. Co. Lit. 8 a (note), where, however, the distinction above adverted to is expressed in terms that might perhaps be misunderstood. See also 11 Vin. Ab. tit. Executors (Z), p. 166. So, if an executor takes an estate pur autre vie, or an heir succeeds as special occupant, they will have the same interest in the property that the deceased owner of the particular estate enjoyed. |