be taken away without prejudice to the fabric of the house, it seemeth that the executor shall have them: as tables, although fastened to the floor; furnaces, if not made part of the wall; grates, iron ovens, jacks, clock-cases, and such like, although fixed to the freehold by nails or otherwise. cases: set pots, ovens, ranges: On the other hand, the common law judges have, in several modern instances, incidentally stated the old rule as existing Contrary dicta of judges in recent with scarcely any relaxation, between the executor and the heir. Thus, in Winn v. Ingilby (t), the question was, whether the sheriff had a right to take in execution, under a fieri facias, some fixtures, in a house which was *the plaintiff's freehold, consisting of set pots, ovens, and ranges: The court decided that the sheriff had no right: For these were fixtures which would go to the heir, and not the executor, and they were not liable to be taken as goods and chattels under an execution (u). So in Colegrave v. Dias Santos (2), which was trover for articles of three classes; the first admitted to be clearly annexed to cooling the inheritance:-the second, consisting of stoves, coolcoppers, blinds : ing coppers, and blinds; and the third, not fixtures at all; Bayley, J., said, "The general rule relating to the right of fixtures, is that between the heir and the executor; and as between them, the second class of articles would belong to the heir." In the same case, Abbott, C. J., said, "The rule of law is most strict between the heir and the executor: According to that rule, the articles in the two first classes would be considered as a parcel of the freehold." And in The King v. St. Dunstan (y), where in a settlement case, the stoves, stoves, grates, cupboards. question was whether certain fixtures, consisting of a stove, cupboards, and grates, (the stove and grates fixed with brickwork in the chimney-places, and the cupboards standing on the ground, and supported by holdfasts, and all removable without doing any injury to the freehold, except leaving a few marks of nails) were parcel of a demised tenement; the court held that they were, and Bayley, J. said, "Although these fixtures, if they belonged to the tenant, might have been removed by him during the term, yet, as they actually belonged to the landlord, they were parcel of the freehold, and would have gone to his heir, and not to his executor." From these cases, it should seem, that the law is by no means (t) 5 B. & A. 625. (u) See Mather v. Fraser, 2 Kay & J. 550, per Wood, V.-C. (x) 2 B. & C. 76. clearly settled respecting the right of the executor of tenant in fee to fixtures set up for ornament or domestic convenience. 2. To what fix tures an executor against a devisee is entitled 88 of tenant in fee. 2. It is now proper to view the subject of Fixtures as between the executor and the devisee of a tenant in fee. *The general rule is, that a devisee shall take the land in the same condition as it would have descended to the heir: and consequently he will be entitled to all articles that are affixed to the land, whether the annexation takes place before, or subsequent to the date of the devise: and as to those fixtures which the executor may claim against the heir, he would be equally entitled against a devisee (z). However, it will be recollected that in the analogous case of Emblements, while the heir is excluded in favor of the executor, the devisee has been held to be entitled to them upon the presumed intention of the testator (a). There seems no doubt but that if, from the nature or condition of the property devised, it is apparent that the intention was that the fixtures should go along with the freehold to the devisee, they will pass to him, although they are of such a sort that the executor might have been entitled to them as against the heir. Thus, where the devise was of the testator's copyhold estates, which consisted, inter alia, of a brewhouse and malthouse, let on lease, together with the plant and utensils, it was held that the plant passed with the brewhouse, on the ground that the testator intended to devise the plant as well as the shell of the brewhouse; that without the plant, the walls would be of no use: and that it was material that the whole was, at the time of making the will, in lease together (b). + See American note at end of this Sub-section at p. *659. (2) Amos & Ferard on Fixtures, 3rd edit., 323. (a) See ante, p. *627. (b) Wood v. Gaynon, 1 Ambl. 395. In the case of a conveyance of land by way of mortgage, as well as in that of a conveyance of any other description, all things annexed so as to become fixtures pass with the mortgaged premises as part of the mortgage security, and that though the deed contains no mention of fixtures. The Conveyancing and Law of Property Act, 1881, sect. 6, enacts that a conveyance of land made after the commencement of the act [1 Jan., 1882], "shall be deemed to include and shall by virtue of the Act operate to convey with the land all . . fixtures." This was the law as established by decided cases. These cases, which since the above act have become less material (except as to mortgages executed before 1 Jan., 1882) are set out in the 8th edition of this work, p. 746, note (i). 3. Rights to fix tures of the execu tor of tenant for life or in tail as against remainderman : *3. The subject now proceeds to the right to fixtures of the executor of tenant for life or in tail, as against the reversioner or remainderman:† and the division employed in considering the right of the executor of tenant in fee will here be resorted to: viz. 1. The claim to fixtures set up by the particular tenant for purposes of trade. 2. The claim to fixtures set up by him for ornament or domestic convenience. Since the law is more indulgent in this respect to the executor of the particular tenant, than to the executor of the tenant in fee, it is clear that the authorities already mentioned which are in favor of the executor's right as against the heir are equally so in favor of it as against the remainderman or reversioner. In addition to these, there as to trade fix are cases, with respect to trade fixtures, in which the rights of the personal representatives of the tenant for life or in tail have been expressly considered. In Lawton v. Lawton (e), it was held that a fire engine, set up for the benefit of a colliery, by the tenant for life, should be considered part of his personal estate, and go to his executor for the increase of assets in favor of creditors: And Lord Hardwicke, in giving his judgment, said, “It appears in evidence that, in its own nature, the fire engine is a personal movable chattel, taken either in part, or in gross, before it is put up; but then it has been insisted, that fixing it, in order to make it work, is properly an annexation to the freehold. tures: "To be sure, in the old cases, they go a great way upon the annexation to the freehold; and so long ago as Henry the Seventh's time, the Courts of law construed even a copper and furnaces to be part of the freehold. Since that time the general ground the Courts have gone upon, of relaxing the strict construction of law, is, that it is for the benefit of the public to encourage tenants for life to do what is advantageous to the estate during their term." *In another part of his judgment, his lordship observed, "It is true the old rules of law have indeed been relaxed, chiefly between landlord and tenant, and not so frequently between an ancestor and heirat-law, or tenant for life and remainderman. But, even in these cases it does admit the consideration of public convenience for determining the question. "One reason that weighs with me is, its being a mixed case, between enjoying the profits of the land and carrying on a species of See American note at end of this (c) 3 Atk. 13. Sub-section at p. *659. trade; and, considering it in this light, it comes very near the instances in brewhouses, &c., of furnaces and coppers." The judgment concludes with these observations, "It is very well known that little profit can be made of coal mines without this engine; and tenants for lives would be discouraged in erecting them, if they must go from their representatives to a remote remainderman, when the tenant for life might possibly die the next day after the engine is set up. These reasons of public benefit and convenience weigh greatly with me, and are a principal ingredient in my present opinion." The decision was followed by the case of Lord Dudley v. Lord Warde (d), which came before Lord Hardwicke a few years after Lawton v. Lawton, and was very similar in its circumstances. A bill was brought by the executor of tenant for life (or tenant in tail, for it did not appear which the testator was) against the remainderman of the estate, to have a fire engine, which had been erected by the testator for a colliery, delivered up as part of the personal estate and it was adjudged in favor of the executor: And his lordship, in reference to the point decided in Lawton v. Lawton, says, "If it is so in the case of a tenant for life, query, how would it be in cases of tenant in tail? Tenant in tail has but a particular estate, though somewhat higher than tenant for life. In the reason of the thing there is no *material difference: The determinations have been from a consideration of the benefit of trade. A colliery is not only the enjoyment of the estate, but in part carrying on a trade. The reason of emblements going to the executor of a particular tenant holds here, to encourage agricul ture. Suppose a man of indifferent health, he would not erect such an engine, at a vast expense, unless it would go to his family." There appears to be no other express case in the books upon this part of the subject: but these decisions of Lord Hardwicke have been frequently recognized in the common law courts, viz., by Lord Mansfield, in Lawton v. Salmon (e), by Lord Kenyon, in Penton v. Robart (f), and by Lord Ellenborough, in Elwes v. Maw (g). It will be observed, that none of the arguments employed by Lord Hardwicke respecting the benefit of the public, and the encouragement of trade, appear to have any application to the question as between heir and executor, where the owner of the fee, being the absolute owner of the land as well as the personal property which has been affixed to the freehold for the purposes of his trade, may dispose of the one as well as the other as he shall think fit for the benefit of his (d) 1 Ambl. 113. (e) 1 H. Black. 260, in notis. (f) 2 East, 91. (g) 3 East, 54. family, and where, consequently, it is not at all necessary, in order to encourage the erection of such works, to make any departure, in his favor, from the old rule of law (h). of tenant for life, &c., to ornamental fixtures, &c. up With respect to the right of the executor of tenant for life, as Right of executor against the remainderman or reversioner, to fixtures set for ornament, or domestic convenience; it is somewhat singular, that not a single case is to be found in the books relating expressly to this subject. Nevertheless, upon *the ground that the law is more favorable in this respect to the executor of tenant for life than to the executor of tenant in fee, it is clear, a fortiori, that all the cases which support the right of the latter to hangings, pier-glasses, tapestry, pictures, iron backs to chimneys, furnaces, grates, &c., are express authorities in favor of the right of the former; and further, that the strong expressions of judges in favor of the heir, which, in the recent cases heretofore mentioned, somewhat weaken the effect of the determinations in favor of the claims of the executor of tenant in fee, do not affect them with relation to those of the executor of tenant for life or in tail. 4. Cases of fixtures and tenant. 4. With respect to the decisions between landlord and tenant,† it has been so repeatedly laid down by the highest authorbetween landlord ities that the right to fixtures is considered more favorably to the tenant, as against his landlord, than to the executors of tenant for life, or in tail (i), as against the remainderman or reversioner, that it would be wrong to conclude that a fixture set up for ornament or domestic convenience, by a tenant for life, &c., may be claimed as personalty by his executor, from the fact that it has been decided to be a removable fixture, as between landlord and tenant. However, it is asserted in a work, in which this subject has been very fully and ably treated (k), that it cannot, upon authority, be affirmed of any specific article, that it is removable as between landlord and tenant, but that it is not removable as between the tenant for life and the remainderman. And Lord Hardwicke seems to treat the two classes much in the same light, considering their claims to be (h) See the observations of Lord Cottenham in Fisher v. Dixon, 12 Cl. & F. 328, of Lord Campbell, ib. 330, 331, and of Lord Brougham, ibid. 332. See also the able and elaborate judgment of Wood, V.-C., in Mather v. Fraser, 2 Kay & J. 536; and Walmsley v. Milne, 7 C. B., N. S. 115. + See American note at end of this Sub-section at p.*659. (i) Penton v. Robart, 2 East, 91. Elwes v. Maw, 2 East, 51. Grymes . Boweren, 6 Bingh. 439, 440. (k) Amos & Ferard on Fixtures, 3rd edit., 175. |