OF HEIR-LOOMS, AND CERTAIN OTHER CHATTELS.

SECT. I. Of Heir-looms.

II. Of certain other Chattels.

SECTION I.

OF HEIR-LOOMS.

AN heir-loom seems to be a personal chattel, which so belongs to an estate of inheritance, that, by the particular custom of the place where the estate is situate, it is descendible with it to the heir at law. Sir Henry Spelman defines it, "omne utensile robustius quod ab ædibus non facile revellitur, ideoque ex more quorundam locorum ad hæredem transit tanquam membrum hæreditatis: nam heier Sax. hæres: leoma, membrum."(a) "In some places," says Sir Edward Coke, "chattels as heir-loomes (as the best bed, table, pot, can, cart, and other dead chattels moveable) may go to the heir; and the heir in that case may have an action for them at the common law, and shall not sue for them in the Ecclesiastical Court; but the heir-loome is due by custom, and not by the common law. An heir-looms is called principalium, or hæreditarium."(b) And although heir-looms may generally be "such things as cannot be taken away without damaging or dis[ *196 ] membering the freehold,"(c) yet Sir E. Coke and Sir W. Blackstone both are authorities, that a personal chattel, which is not annexed to the freehold, as a cart, or household utensil or implement, may also be an heir-loom.(d) In an action of trover for a chain of pearl, it was, by Holt, C. J., ruled at Nisi Prius, that " a jewel cannot be an heirloom, but only things ponderous, as carts, tables, &c."(e)

(a) Spelman Gloss. v. Heier-lome.

(b) Co. Litt. 18 b. To the same effect, see Bro. Abr. tit. Customes, 27, tit. Discent, 43, and 1 Rol. Abr. 625, E. 3. An heirloom may not only be, the best bed, table, or the like, an expression which supposes some other chattel of the same kind, and appears to admit that the heir-loom may be a chattel, newly acquired by the owner of the estate; but it may be a particular chattel, that has seen several descents. "Heir-loome is any piece of household stuff (ascun parcel des utensils d'un mease), which, by the custom of some countries, having belonged to a house for certain descents, goes with the house (after the death of the owner) to the heir, and not to the executors." Termes de la Ley, v. Heir-loome.

(c) Spelman Gloss, v. Heier-lome; 2 BI. Com. 427.

(d) Co. Litt. 18 b.; 2 Bl. Com. 428.

(e) Lord Petre v. Heneage, 1 Ld. Raym. 728. In another report of the same case, the learned judge expressed an opinion, that "goods in gross cannot be an heir-loom, but they must be things fixed to the freehold, as old benches, tables, &c." (12 Mod. 519). This certainly was an observation directly pertinent to the case before the Court; but here it may be noticed that, with reference to the obiter dicta of the same learned person, Lord Chief Justice Willes has said, that, in many cases, they were "nunquam dicta, but barely the words of the reporters; for, upon examination, I have found many of the sayings ascribed to that great man, Lord Chief Justice Holt, were never said by him." 1 Ves. jun. 13.

Heir-looms may be sold, or otherwise disposed of, by the ancestor, in his life-time, and like timber, even separately from the estate to which they belong. (f) But, separately from the estate, he cannot dispose of them by his will.(g) "If a man," says Sir E. Coke, "be seised of a house, and possessed of divers heir-looms, that by custom have gone with the house from heir to heir, and by his will deviseth away the heirlooms, this devise is void; for the will taketh effect after his death, and by his death the heir-looms, by ancient custom, are vested in the heir, and the law preferreth the custom before the devise."(h) If the estate is devised away from the heir, and the heir-loom is some "utensile robustius quod ab ædibus non facile revellitur," some chattel, which "cannot be taken away, without damaging or dismembering the freehold:" in this case, it is presumed such heir-loom will, with the estate, pass to the devisee. (2) But if the heir-loom is some best chattel, not fixed to the freehold, as the best cart, or pot, or can, or other household utensil or implement, then, perhaps, this chattel will not, where there is such devise, belong either to the devisee, or to the heir, but will, as personal property, go to the testator's executor or administrator.

*On bequeathing personal chattels, as plate, pictures, books, or household furniture, the testator frequently directs that they [ *197 ] shall, in the nature of heir-looms, accompany the descent or devolution of a particular real estate, devised, or previously settled. Such a bequest, although it will not make these chattels heir-looms, will impress them with so much of their nature, that they will be capable of following the course of descent or limitation of real property. But an adult tenant, either in fee or in tail, of the real estate, the course of descent or limitation of which such chattels are to follow, may sell or otherwise alien them in his life-time; and, what distinguishes this kind of property from real heir-looms, may dispose of them, without the estate, by his will. A person possessed of personal chattels, under a bequest, by which, if it was a limitation of real estate, he would be seised either in fee-simple or fee-tail, possesses the whole and absolute interest in them;(j) and, as personal property is not a subject of descent,(k) they will, if not before disposed of by him, devolve at his death to his personal representative, executor or administrator.(1) And they will so devolve, and his interest in them will be the same, notwithstanding a direction in the will, that they shall be deemed and taken as heir-looms. (m)

When personal chattels are bequeathed to accompany limitations, or a devise, in strict settlement of real estate, and are directed to be deemed and taken as heir-looms, an infant tenant in tail in possession of the real estate will be possessed of the whole interest in the chattels, (n) unless there are additional expressions in the bequest, which prevent their vesting in such tenant in tail during his minority.(0) When vested in the infant, they cease to follow the limitations of the real estate; at the age

of fourteen he may dispose of them by his will;(p) and in the event of his death at any age during his minority, they will, if undisposed of by him, belong to his personal representatives. (g)

SECTION II.

OF CERTAIN OTHER CHATTELS.

AN heir at law, to whom land is descended in fee, is, to the exclusion of his ancestor's executor or administrator, entitled to the following kinds of chattels personal, which, as "profits of the freehold," (r) or, "necessary to the well-being of the inheritance," (s) belonged to such ancestor at the time of his death; namely, deer in a park,(t) [*199] that is, in a "real authorized" (u) *park; conies in a war

ren; (v) doves, or pigeons, in a dove-house, (w) young and old;(x) fish in a pond, (y) as "carps, breames, tenches, &c.," bought by the ancestor, and put into his pond for store.(z) And the heir is, it may here be added, entitled to timber, and fruit, or other trees growing;

to fruit *on trees; and to grass growing, or, as it is other [*200 ] wise expressed, growing for hay, or grass ready to be cut down.(a) And having mentioned certain animals, to which an heir at law is entitled on the death of his ancestor, it may be of some use farther to state, that they constitute exceptions to the general law, which gives to the personal representative, executor, or administrator, of a person deceased, all his personal property;(b) and, under which general law, the executor or administrator is entitled, it may in particular be noticed, to the following kinds of property of the person deceased; namely, his tame deer, conies, pigeons, pheasants, partridges; "so, though not tame, if they were taken, and kept alive in any room, cage, or like receptacle, as pheasants and partridges often be:"(c) also his fish in a trunk:(d) and his horses, kine, bullocks, sheep, swine, and cattle of all kinds; his geese, ducks, poultry, &c.:(e) and it is manifest that the author of "The Office and Duty of Executors" inclined to the opinion, that the personal representative is moreover entitled to the hounds, greyhounds, and spaniels,

particularly some of those that bear that name in the older maps of the county, are now disused, and retain only the name, yet the number is rather enlarged than diminished, many other places having lately been imparked, and very finely stocked with deer." (Morton's Nat. Hist. of Northamptonshire, ed. 1712, p. 12). The same observation may, perhaps, be applied to most other counties in England; and such recent inclosures are, it is probable, parks in reputation only, and not legal parks. In Burton's Description of Leicestershire (ed. 1622, p. 6), are enumerated several parks in that county; and, among others, "Kirby Park, imparked by William, first Lord Hastings, 14 Edward IV., now the inheritance of Sir Henry Hastings. Bagworth Park, imparked by William Lord Hastings, 14 Edward IV., now the inheritance of Sir Robert Banaster, Knight." The same author also mentions a park "imparked by William Lord Hastings, by license of King Edward IV., 14 Edw. IV." And of parks disparked, he names "Hoult Park, imparked by Thomas Palmer, Esq., by license granted 26 Henry VI." Madox, in his History of the Exchequer, enumerates the fines paid for a great variety of licenses granted by the Crown; and, among others, he mentions that, "Peter de Goldinton gave one Hawk, for leave to enclose certain land, part of his wood of Stokes, to make a park of it," (p. 326). And it there also appears that, to make a park, a license was granted to enclose a wood in the manor of Coggeshal, probably in Essex (p. 280, n. (y)). Other fines for enclosures are mentioned in the same work, p. 279, n. (n), and p. 353.

(v) Co. Litt. 8 a.; Wentw. Off. Ex. ch. 5; God. Orph. Leg. part 2, ch. 14.

(w) Co. Litt. 8 a.; Wentw. Off. Ex. ch. 5; Swinb. on Wills, part 6, s. 7, 5th ed. p. 403; God. Orph. Leg. part 2, ch. 14, part 3, ch. 21.

(x) Co. Litt. 8 a. The author of "The Office and Duty of Executors" says, that the executor, and not the heir, is entitled to "young pigeons, though not tame, being in the dove-house, not able to fly out; yet their dams, the old ones, shall go to the heir with the dove-house." Wentw. Off. Ex. ch. 5, 14th ed. p. 143.

(y) Wentw. Off. Ex. ch. 5; Swinb. on Wills, part 6, s. 7; God. Orph. Leg. part 2, ch. 14; Parlet v. Cray, Cro. Eliz. 372; Gray v. Trowe, Gouldsb. 129; Grey's case, or Grey 7. Bartholomew, Owen, 20. See also Anon. Keilw. 118 a.

(z) Gray v. Pawlett, or Paulet, 1 Rol. Abr. 916, Z. 1, Co. Litt. 8 a.

(a) Swinb. on Wills, part 3, s. 6, part 7, s. 10, 5th ed. p. 176, 478, 479; God. Orph. Leg. part 2, ch. 13, and ch. 14, 2nd ed. p. 122, 126; Wentw. Off. Ex. ch. 5, 14th ed. p. 145, 146. On trees, as lemon-trees, in boxes, see Oliviere v. Vernon, 6 Mod. 170.

5.

(b) Co. Litt. 388 a.; Wentw. Off. Ex. ch.

(c) Wentw. Off. Ex. ch. 5, 14th ed. p. 143; God. Orph. Leg. pt. 2, ch. 13, 2nd ed. p. 122.

(d) Wentw. Off. Ex. ch. 5; Co. Litt. 8 a. See also 6 Mod. 183.

(e) Wentw. Off. Ex. ch. 5, 14th ed. p. 138; God. Orph. Leg. pt. 2, ch. 13, 2nd ed. p. 122.

which belonged to the deceased;(f) and this opinion agrees, it is probable, with the present law on the subject;(g) notwithstanding it may be true that hounds, being feræ naturæ, are not, for all purposes, either goods or chattels, (h) and will not pass under a grant or bequest of "goods and chattels"(i) and although Swinburne and Noy appear to have thought, that the hounds of a person deceased devolve to his heir, and not to his executor or administrator."(j)

OF CONVERSION BY WILL OF REAL ESTATE INTO PERSONAL, AND OF PERSONAL INTO REAL ESTATE.

SECT. I. Of Conversion of Real into Personal Estate.
II. Of Conversion of Personal into Real Estate.

SECTION I.

OF CONVERSION OF REAL INTO PERSONAL ESTATE.

1. Conversion for a limited purpose only.—2. Conversion for all the purposes of the will; the testator creating a trust to sell real estate, and meaning to dispose of the whole produce of the sale, but to dispose of it as property distinct from his general personal estate.-3. Conversion for all the purposes of the will; the testator creating a trust to sell real estate, and meaning to dispose of the whole produce of the sale, and to dispose of it, as, for the purposes of his will, a part of his general personal estate.-4. Conversion, out and out. -5. Of the quality, real or personal, of the interest, that, under a trust for sale, results to the testator's heir at law.

1. When a will creates a trust to sell real estate, the testator's object sometimes is, to cause a conversion for a limited purpose only; as to pay debts, or legacies, or both debts and legacies. (a) Where a will has created a trust to sell real estate, for the limited purpose to pay debts, the testator's heir at law has been held to take, by resulting trust, the surplus of the money raised by the sale, after the debts paid. (b)

(f) Wentw. Off. Ex. ch. 5, 14th ed. p. 143.

(g) 4 Burn. Eccl. L. 7th ed. 297; Amos & Fer. on Fixt. 169.

(h) Swinb. on Wills, pt. 7, s. 10, 5th ed. p 476, 480.

(i) Noy's Max. 50, 101, 9th ed. 144, 230, and arg. Cro. Eliz. 126, Owen, 94.

In Ire

(j) Swinb. on Wills, pt. 7, s. 10, 5th ed. 480; Noy's Max. 50, 9th ed. 144. land v. Higgins, Owen, 93, it is said by counsel in arg., that dogs are not assets.

(a) Dixon v. Dawson, 2 Sim. & St. 327. (b) Gale v. Crofts, 4 Vin. Abr. 468, 2 Eq. Cas. Abr. 494. See Kinaston v. Kinaston, 2 Dick. 506; and, farthor, 16 Ves, 191.