SECTION II.

Of the estate of an executor or administrator in chattels vegetable.†

to the heir:

Personal effects of a vegetable nature are the fruit or other parts of a plant or tree, when severed from the body of it, or the What growing whole plant or tree itself, when severed from the things shall go ground (r). But unless they have been severed, trees, and the fruit and produce of them, from their intimate connection with the soil, follow the nature of their principal, and therefore, when the owner of the land dies, they descend to his heir, and do not pass to his executor or administrator (s). Hence apples Trees and fruit pears, and other fruits, if hanging on the trees at the not severed: time of the death of the ancestor, shall go to his heir, and not to his executor or administrator (t). So it is of hedges, bushes, &c.; for all these are the natural or permanent profit of the earth, and are reputed parcel of the ground whereon they grow.

cases

where growing trees go to the executor:

Some cases, however, exist, where even growing timber trees, are, owing to special circumstances, considered as chattels, certain and as such will pass to the executor or administrator. Thus, if tenant in fee-simple grants away the trees they are absolutely passed from the grantor and his heirs, and vested in the grantee; and if the latter should die before they are felled, they will go to his executor or administrator: for *in consideration of law, they are divided as chattels from the freehold (u). So where tenant in fee-simple sells the land and reserves the trees from the sale, the trees are in property divided from the land, although, in fact, they remain annexed to it, and will pass to the executors or administrators of the vendor (x). But if the person so entitled to the trees distinct from the land, afterward purchases the inheritance, the trees will be reunited to the freehold in property, as they are de facto, and descend to the heir (y). Yet if the tenant in fee-simple lease the land for years, excepting the trees, and afterward grants the trees to the lessee, they are not by this means re-annexed to the inheritance,

See American note at end of this Section.

(r) 2 Black. Comm. 389.

(8) Swinb. Pt. 7, s. 10, pl. 8. Re Ain. slie, 30 C. D. 485.

(t) Swinb. Pt. 7, s. 10, pl. 8. Wentw. Off. Ex. 146, 147, 14th edit. Rodwell v. Phillips, 9 M. & W. 501.

(u) Stukeley v. Butler, Hob. 173. Wentw. Off. Ex. 148, 14th edit. Com. Dig. Biens (H).

(a) Herlakenden's Case, 4 Co. 63, b. Wentw. ubi supra.

(y) 4 Co. 63, b. Anon. Owen. 49.

but the lessee has an absolute property in them, which will go to his executors or administrators (z).

So if tenant in tail sells the trees to another, they are a chattel in the vendee, and his executors or administrators shall have them; and in such case also, fictione juris, they are severed from the land; but if the tenant in tail dies before actual severance, as to the issue in tail, they are part of his inheritance, and shall go with it, and the vendee or his executor cannot take them (a). The law, it may be presumed, is the same with respect to the vendee of a tenant in tail after possibility of issue extinct, or a tenant for life without impeachment of waste (b). And it seems that equity would not afford relief (c). With respect to the property in trees and bushes when severed, there seems to be a material difference between such that are severed go trees as, by the general law of the land, or by the custom of the country where they grow, are timber, and such as are not. For if tenant in dower, or by the curtesy, or tenant for life or years, unless he be so without impeachment of waste, cuts down timber trees, or a stranger does so, or the wind blows them down, the trees so severed shall not go to the tenant, or to his executor, but to the owner of the first estate of inheritance in the land (d). On the other hand, if such a tenant cuts down hedges or trees, not timber, or they are severed by the act of God, the tenant shall have them (e): and, consequently, his executor or administrator. So if

when trees, &c.,

to the executor.

(2) 4 Co. 63, b.

(a) Liford's Case, 11 Co. 50, a: for, it was said, timber trees cannot be felled with a goose quill.

(b) Pyne v. Dor, 1 T. R. 55. Bishop of London v. Webb, 1 P. Wms. 528.

(c) See Treat. on Equity, B. 1, c. 4, s. 19, that no act of tenant in tail shall be carried into execution in a court of equity, any further than at law : for this would be to repeal the statute de donis.

(d) Herlakenden's Case, 4 Co. 63, a. Bewick v. Whitfield, 3 P. Wms. 268; in which case Lord Chancellor Talbot said, that this was so decreed upon the occasion of the great windfall of timber on the Cavendish estate. So if tenant for life without impeachment of waste commits equitable waste by cutting

ornamental timber: Lushington . Boldero, 15 Beav. 1 Ormonde . Kynnersley, ibid. 10. But a tenant for life, though subject to impeachment for waste, is entitled to the interest of money produced by the sale of timber trees cut by order of the Court of Chancery, on account of their being in a decaying state, by reason of standing too thickly Tooker. Annesley, 5 Sim. 235. Consett v. Bell, 1 Y. & Coll. C. C. 569.

(e) Com. Dig. Biens (H). Berryman v. Peacock, 9 Bingh. 384. A testator devised estates on which there were plantations of larch trees. At the time of his death a great number of the larch trees had been more or less blown down by extraordinary gales. The Court of Appeal held that, having regard to the

trees are blown down, which are in their nature timber, but are dotards without any timber in them (ƒ), or if such are wrongfully severed by the lessor, they belong to the tenant, and will pass to his executors (g).

Emblements:

There are, however, certain vegetable products of the earth, which, although they are annexed to and growing upon the land at the time of the occupier's death, yet, as *between the executor or administrator of the person seised of the inheritance, and the heir, in some cases, and between the executor or administrator of the tenant for life, and the remainderman or reversioner, in others, are considered by the law as chattels (h), and will pass as such. These are usually called emblements.

The vegetable chattels so named, are the corn and other growth of the earth, which are produced annually, not spontaneously, but by labor and industry, and thence are called fructus industriales. When the occupier of the land, whether he be the owner of the inheritance or of an estate determining with his own life, has sown or planted the soil with the intention of raising a crop of such a nature and dies before harvest time, the law gives to his executors or administrators the profits of the crop Emblavence de bled, or Emblements, to compensate for the labor and expense of tilling, manuring, and sowing

maxim quidquid plantatur solo, solo cedit, the principle applicable was that, if a tree was attached to the soil, it was real estate, and if severed, personalty : that the life and manner of growth of any particular tree was no test of its attachment to the soil, and that the degree of attachment or severance was a question of fact in the case of each particular tree: Re Ainslie, 30 C. D. 485.

(f) Herlakenden's Case, 4 Co. 63, a. b. Countess of Cumberland's Case, Moore, 812.

(9) Channon v. Patch, 5 B. & C. 897. (h) They are in fact not only in this respect, but in most others looked upon as chattels for the rule seems now to be established, that all those vegetables which go to the executor, and not to the heir are for most purposes considered

mere chattels. They may consequently be seized and sold under a fieri facias; and the sale of them while growing is not a contract, or sale of any lands, tenements, or hereditaments, or any interest in or concerning them, within the 4th section of the Statute of Frauds : but a sale of goods, wares, and merchandise, within the 17th section: See the judgments of Bayley and Littledale, Justices, in Evans v. Roberts, 5 B. & C. 829; and of Hullock, B., in Scorell v. Boxall, 1 Younge & Jerv. 398. See also Jones v. Flint, 10 A. & E. 753. In the case of Brantom v. Griffiths, 1 C. P. D. 349, it was held that growing crops are not personal chattels within the Bills of Sale Act, 1854. Growing crops, however, if separately assigned are personal chattels within the Bills of Sale Acts, 1878 and 1882.

the doctrine of

tends:

corn, hemp, flax,

saffron, &c.:

the land (). The rule is established as well for the encouragement of husbandry and the public benefit (k), as on the consideration, in the case of tenant for life, that the estate is determined by act of God, and that the maxim of law is, actus Dei nemini facit injuriam (1). *The doctrine of emblements extends not only to corn and grain of to what produce all kinds, but to everything of an artificial and annual emblements ex profit, that is produced by labor and manurance (m): as hemp, flax, saffron, and the like (n); and melons of all kinds (o); and hops also, although they spring from old roots, because they are annually manured, and require cultivation (p); and so of potatoes (q). But the rule does not apply (as it has already appeared), to fruit not to fruits grow growing on trees (r); nor to the plantation of trees: for the general rule is, quidquid plantatur solo, solo cedit; and when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to him in future, and to future successions of tenants (s). Therefore, if a man sow the land with acorns, or plant young fruit trees, or oak, elm, ash, or other trees, these cannot be comprehended under emblements (t). The nursery grounds, case of trees, shrubs, and other produce of their grounds planted by gardeners and nurserymen, with an express

melons: hops: potatoes:

ing:

or young trees planted :

&c.:

(2) Swinb. Pt. 7, s. 10, pl. 8.

(k) 2 Black. Comm. 122.

(1) By Lord Hardwicke, in Lawton v. Lawton, 3 Atk. 16.

(m) Co. Lit. 55, b.

(n) Ibid. Wentw. Off. Ex. 147, 14th edition.

(0) Wentw. Off. Ex. 153, 14th edit. The author of that book expresses his opinion, that artichokes go to the heir, as they have not that yearly setting or manurance as should sever them in interest from the soil: Ibid. sed quære.

(p) The authorities, however, do not prove that the person who planted the young hops, or his personal representatives, will be entitled to the first crop, whenever produced: Graves v. Weld, 5 B. & Adol. 105, 120. As to Teazles, see Kingsbury v. Collins, 4 Bing. 202.

(9) Evans v. Roberts, 5 B. & C. 832, by Bayley, J. It is said in Godolphin, Pt. 2, c. 14, s. 1, that things under ground, whether in gardens or elsewhere, as carrots, parsnips, turnips, or skerrets, shall go to the heir; and the same is said in Wentw. Off. Ex. 152, . 14th edit., on the principle that the executors could not reach them without digging and breaking the soil. Lord Coke says, that if the tenant plant roots, his executors shall have that year's crop Co. Lit. 55, b.: and probably at this day it would be so holden. See 2 Black. Comm. 123.

(r) Ante, p. *620.

But

(s) Gilb. Ev. 210. 2 Black, Comm 123.

(t) Co. Lit. 55 b.

view to sale, may be mentioned as an exception; for they are removable by them or their executors, as emblements are (u).

grass:

*The growing crop of grass, even if sown from seed, and though ready to be cut for hay, cannot be taken as emblements; because, as it is said, the improvement is not distinguishable from what is natural product, although it may be increased by cultivation (x). It seems, however, that the artificial grasses, such as clover, saint-foin, and the like, by rea- artificial grasses: son of the greater care and labor necessary for their production, are within the rule of emblements (y).

But the doctrine of emblements extends to a crop of that species only which ordinarily repays the labor, by which it is second year's produced, within the year in which that labor is be- crops. stowed, though the crop may in extraordinary seasons be delayed beyond that period (z). In Graves v. Weld (a), the tenant for a term determinable upon a life sowed the land in spring, first with barley and soon after with clover: The life expired in the following summer: In the autumn the tenant mowed the barley, together with a little of the clover plant, which had sprung up: The clover so taken made the barley straw more valuable, by being mixed with it: but the increase of the value did not compensate for the *expense of cultivating the clover, and a farmer would not be repaid such expense in the autumn of the year in which it was sown: The reversioner came into possession in the winter, and took two crops of the same clover, after more than a year had elapsed from the sowing: It was held that

(u) Penton v. Robart, 2 East, 90, in Lord Kenyon's judgment: Lee v. Risdon, 7 Taunt. 191, in the judgment of Gibbs, C. J.: and see the remark of Lawrence, J., in 3 East, 44, note (c). But where a tenant, not being a nurseryman by trade, makes a nursery for fruit trees, for the purpose of transplanting to the orchards, he has no right to sell them: by Heath, J., in Wyndham v. Way, 4 Taunt. 316. Lord Ellenborough held at Nisi Prius, that it was waste for an outgoing tenant of garden ground to plow up strawberry beds in full bearing, although when he came in he paid for them at a valuation: Wetherell v. Howells, 1 Campb. 227. And it was held in Empson v.