sonal chattel, which, immediately on the death of the tenant who was the owner of it, being ascertained by the option of the lord, (m) becomes vested in him as his property; and is no charge upon the lands, but merely on the goods and chattels. The tenant must be the owner of it, else it cannot be due; and therefore, on the death of a feme-covert, no heriot can be taken; for she can have no ownership in things personal. (n) In some places there is a customary composition in money, as ten or twenty shillings in lieu of a heriot, by which the lord and tenant are both bound, if it be an indisputably ancient custom; but a new composition of this sort will not bind the representatives of either party; for that amounts to the creation of a new custom, which is now impossible. (o) (1) 2. Mortuaries are a sort of ecclesiastical heriots, being a customary gift claimed by and due to the minister in very many parishes on the [*425] death of his parishioners. They seem originally to have been, like lay heriots, only a voluntary bequest to the church; being intended, as Lyndewode informs us from a constitution of Archbishop Langham, as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesiastical duties, which the laity in their lifetime might have neglected or forgotten to pay. For this purpose, after (p) the lord's heriot or best good was taken out, the second best chattel was reserved to the church as a mortuary: "si decedens plura habuerit animalia optimo cui de jure fuerit debitum reservato, ecclesiæ suæ sine dolo, fraude seu contradictione qualibet, pro recompensatione subtractionis decimarum personalium, necnon et oblationum, secundum melius animal reservetur, post obitum, pro salute animæ suæ." (q) And therefore in the laws of King Canute (r) this mortuary is called soul-scotranlrceator symbolum animæ. And, in pursuance of the same principle, by the laws of Venice, where no personal tithes have been paid during the life of the party, they are paid at his death out of his merchandise, jewels, and other movables, (s) So also, by a similar policy, in France, every man that died without bequeathing a part of his estate to the church, which was called dying without confession, was formerly deprived of christian burial: or, if he died intestate, the relations of the deceased, jointly with the bishop, named proper arbitrators to determine what he ought to have given to the church, in case he had made a will. But the parliament, in 1409, redressed this grievance. (t) It was anciently usual in this kingdom to bring the mortuary to church along with the corpse when it came to be buried; and thence (u) it is sometimes called a corse-present: a *term which bespeaks it to have been once a voluntary donation. However, in Bracton's time, so early as Henry III, we find it [*426] riveted into an established custom: insomuch that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. "Imprimis autem debet quilibet, qui testamentum fecerit, dominum suum de meliori re quam habuerit recognoscere; et postea ecclesiam de alia meliori:" the lord must have the best good left him as an heriot, and the church the second best as a mortuary. But yet this custom was different in different places: "In quibusdam locis habet ecclesia melius animal de consuetudine; in quibusdam secundum vel tertium melius; et in quibusdam nihil: et ideo consideranda est consuetudo loci." (w) This custom still varies in different places, not only as to the mortuary to be paid, but the person to whom it is payable. In Wales a mortuary or corse-present was due upon the death of every clergyman to the bishop of the diocese; till abolished, upon a recompense given to the bishop, by the statute 12 Ann. st. 2, c. 6. And in the archdeaconry of Chester a custom also (m) Hob. 60. (p) Co. Litt. 185. (n) Keilw. 84. 4 Leon. 239. (q) Provinc. l. 1, tit. 3. (3) Panormitan. ad decretal. 1. 3 t. 20, c. 32. (a) Selden, Hist. of Tithes, c. 10. (o) Co. Cop. 5 31. (r) C. 13. (t) Sp. L. b 2s, c. 41. (w) Bracton, l. 2, c. 26. Flet. l. 2, c. 57. (1) [And indeed heroits themselves will in time cease to be exigible, one of the Copyhold Enfranchisement Acts, 15 and 16 Vic. c. 51, § 27, having enabled either lord or tenant to compel the extinguishment of this ancient feudal burden,] prevailed, that the bishop, who is also archdeacon, should have, at the death of every clergyman dying therein, his best horse or mare, bridle, saddle, and spurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best signet or ring. (x) But by statute 28 Geo. II, c. 6, this mortuary is directed to cease, and the act has settled upon the bishop an equivalent in its room. The king's claim to many goods, on the death of all prelates in England, seems to be of the same nature: though Sir Edward Coke (y) apprehends, that this is a duty due upon death and not a mortuary: a distinction which seems to be without a difference. For not only the king's ecclesiastical character, as supreme ordinary, but also the species of the goods claimed, which bear so near a resemblance to those in the archdeaconry of Chester, which was an acknowledged mortuary, puts the matter out of dispute. The king, according to the record vouched by Sir Edward Coke, is entitled to six things: the *bishop's best horse or palfrey, with his furniture; his cloak, or gown, [*427] and tippet; his cup and cover; his basin and ewer; his gold ring; and, lastly, his muta canum, his mew or kennel of hounds; as was mentioned in the preceding chapter. (z) This variety of customs, with regard to mortuaries, giving frequently a handle to exactions on the one side, and frauds or expensive litigations on the other; it was thought proper by statute 21 Hen. VIII, c. 6, to reduce them to some kind of certainty. For this purpose it is enacted, that all mortuaries or corse-presents to persons of any parish, shall be taken in the following manner; unless where by custom less or none at all is due; viz.: for every person who does not leave goods to the value of ten marks, nothing: for every person who leaves goods to the value of ten marks and under thirty pounds, 3s. 4d.; if above thirty pounds and under forty pounds, 6s. 8d.; if above forty pounds, of what valne soever they may be, 10s. and no more. And no mortuary shall, throughout the kingdom, be paid for the death of any feme-covert; nor for any child; nor for any one of full age, that is not a housekeeper; nor for any wayfaring man; but such wayfaring man's mortuary shall be paid in the parish to which he belongs. And upon this statute stands the law of mortuaries to this day. 3. Heir-looms (2) are such goods and personal chattels, as, contrary to the nature of chattels, shall go by special custom to the heir along with the inheritance, and not to the executor of the last proprietor. The termination, loom, is of Saxon original; in which language it signifies a limb or member; (a) so that an heir-loom is nothing else but a limb or member of the inheritance. They are generally such things as cannot be taken away without damaging or dismembering the freehold: otherwise the general rule is, that no chattel interest whatsoever shall go to the heir, notwithstanding it be expressly limited to a man and his heirs, but shall vest in the executor. (b) But deer in a real *author[*428] ised park, fishes in a pond, doves in a dovehouse, &c., though in themselves personal chattels, yet they are so annexed to and so necessary to the wellbeing of the inheritance, that they shall accompany the land wherever it vests, by either descent or purchase. (c) For this reason also I apprehend it is, that the ancient jewels of the crown are held to be heir-looms; (d) for they are necessary to maintain the state, and support the dignity, of the sovereign for the time being. Charters likewise, (3) and deeds, court-rolls, and other evidences of the land, together with the chests in which they are contained, shall pass together with the land to the heir, in the nature of heir-looms, and shall not go to the executor. (e) By special custom, also, in some places carriages, utensils, and (x) Cro. Car. 237. (b) Co. Litt. 388. (y) 2 Inst. 491. (c) Ibid. 8. (z) Page 413. (d) Ibid. 18. (a) Spelm. Gloss. 277. (2) Heir-looms do not seem to be recognized in the law of the United States. 1 Washb. Real Prop. 6. (3) [In general the right to the custody of title-deeds descends or passes with the estate to the existing present owner, whether tenant for life or in fee, and he may retain or recover the deed from any other person. 4 Term R. 229.] other household implements, may be heir-looms; (f) but such custom must be strictly proved. On the other hand, by almost general custom, whatever is strongly affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, "quod ab ædibus non facile revellitur," (g) is become a member of the inheritance, and shall thereupon pass to the heir; as chimney-pieces, pumps, old fixed or dormant tables, benches, and the like. (h) A very similar notion to which prevails in the duchy of Brabant; where they rank certain things movable among those of the immovable kind, calling them by a very particular appellation, prædia volantia, or volatile estates; such as beds, tables, and other heavy implements of furniture, which (as an author of their own observes), "dignitatem istam nacta sunt, ut villis, sylvis, et ædibus, aliisque prædiis, comparentur; quod solidiora mobilia ipsis ædibus ex destinatione patrisfamilias cohærere videantur, et pro parte ipsarum ædium æstimentur." (i) Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tombstone in a church, (4) or the coat-armour of his ancestor there *hung up, with the penons and other ensigns of honour, suited to his degree. In this case, albeit the freehold of the [*429] church is in the parson, and these are annexed to that freehold, yet cannot the parson or any other take them away or deface them, but is liable to an action from the heir. (k) Pews (5) in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir. (7) (6) But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently, (f) Co. Litt. 18, 185. (g) Spelm. Gloss. 277. (i) Stockman's de jure devolutionis, c. 3, § 16. (1) 3 Inst. 202. 12 Rep. 103. (h) 12 Mod. 520. (4) [See Spooner v. Brewster, 3 Bing. 136; 10 Moore, 494.] (5) [The right to sit in a particular pew in a church arises either from prescription as appurtenant to a messuage, or from a faculty or grant from the ordinary, for he has the disposition to a1 pews which are not claimed by prescription. Gibs. Cod. 221. See generally as to the right to pews, 1 Phill. E. C. 316. In an action upon the case at law for a disturbance of the enjoyment of a pew in the body of the church, if the plaintiff claims it by prescription, he must state it in the declaration as appurtenant to a messuage in the parish. 5 B. and A. 356. But a paw in the aisle or chancel of the church may be prescribed for in respect of a house out of the parish. Forrest Rep. 14; 5 B. and A. 351. S. P. This prescription may be supported by an enjoyment for thirty-six years, and perhaps any time above twenty years. 1 T. R. 423. But where a pew was claimed as appurtenant to an ancient messuage, and it was proved that it had been so annexed for thirty years, but that it had no existence before that time, it was held this modern commencement defeated the prescriptive claim. 5 T. R. 293. In an action against the ordinary, the plaintiff must allege and prove repairs of the pew. 1 Wils. 323. But a possessory right to a pew is sufficient to sustain a suit in the ecclesiastical court against a mere disturber. 1 Phill. E. C. 316. See further the cases and precedents, Chitty on Pl. 817; Com. Dig. Action on Case for Disturbance, A. 5; 2 Saund. 175, c. d.] (6) In some of the United States pews are expressly declared by statute to be real, and in others personal estate. In the absence of such statute they partake of the nature of the realty. 1 Washb. Real Prop 9. The pew holder has an exclusive right to occupy his pew and to maintain trespass against any one who disturbs him in his seat. Gay v. Baker, 17 Mass. 435; Gorton v. Hadsell, 9 Cush. 503; Freligh v. Platt, 5 Cow. 494. The pew owners, however, are not owners or part owners of the church lot; their interest consists in the right to occupy their respective pews as a part of the auditory upon occasions of plic worship. Wheaton v. Gates, 18 N. Y. 404; Cooper v. Presb. Church, 32 Barb. 226; Knall v. Second Parish, 24 Pick. 347. And their right of occupancy must yield to circumstances of necessity, convenience or expediency, growing out of the rights in common of the society; and if the trustees make changes in the edifice upon any of these considerations, and a pew is thereby destroyed, the owner must be content with a just and adequate compensation. Wentworth v. First Parish, 3 Pick. 344; Cooper ". Presb. Church, 32 Barb. 223. And if the church edifice become useless by dilapidation, and has to be rebuilt, the right of the pew holder is gone. Voorhies v. Presb. Church, 17 Barb. 103; Howard v. First Parish, 7 Pick. 138; Van Houten v. Reformed Dutch Church, 2 Green, N. J. 126. But the destruction of a church edifice by the trustees does not conclude & pew owner, and he may nevertheless show it to have been unnecessary, and claim compensation. Gorton v. Hadsell, 9 Cush. 508. at least, if not impiously, violate and disturb their remains, when dead and buried. The parson, indeed, who has the freehold of the soil, may bring in action of trespass against such as dig and disturb it; and if any one in taking up a dead body steals the shroud or other apparel, it will be felony; (m) for the property thereof remains in the executor, or whoever was at the charge of the funeral. (7) But to return to heir-looms; these, though they be mere chattels, yet cannot be devised away from the heir by will; but such a devise is void, (n) even by a tenant in fee-simple. For though the owner might during his life have sold or disposed of them, as he might of the timber of the estate, since as the inheritance was his own, he might mangle or dismember it as he pleased; yet they being at his death instantly vested in the heir, the devise (which is subsequent and not to take effect till after his death) shall be postponed to the custom, whereby they have already descended. CHAPTER XXIX. OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. IN the present chapter we shall take into consideration three other species of title to goods and chattels. V. The fifth method, therefore, of gaining a property in chattels, either personal or real, is by succession: which is, in strictness of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, movables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies: and therefore the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate. (a) Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed: but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the cor[*431] poration subsists. (b) And thus a lease for years, an obligation, a jewel, a flock of sheep, or other chattel interest, will vest in the successors, by succession, as well as in the identical members to whom it was originally given. But, with regard to sole corporations, a considerable distinction must be made. For if such sole corporation be the representative of a number of persons; as the master of an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, who represented the whole convent; or the dean of some ancient cathedral, who stands in the place of and represents, in his corporate capacity, the chapter; such sole corporations as these have, in this respect, the same powers as corporations aggregate have, to take personal property or chattels in succession. And therefore a bond to such a master, abbot, or dean; and his successors, is good in (m) 3 Inst. 110. 12 Rep. 113. 1 Hal. P. C. 515. (a) 4 Rep. 65. (n) Co. Litt. 185. (b) Bro. Abr. t. estates, 90. Cro. Eliz. 464. (7) [It has been determined that stealing dead bodies, though for the improvement of the science of anatomy, is an indictable offense as a misdemeanor; it being considered a practice coutrary to common decency, and shocking to the general sentiments and feelings of mankind. 2 T. R. 733; 2 Leach, 560, S. C. law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representative. (c) Whereas, in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession: and, therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successors, shall have it. (d) For the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John, bishop of Oxford, and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such his successors. The reason of this is obvious: for besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from the *death of the present owner until the successor be appointed: and this is contrary to the nature of a chattel interest, which can never be in [*432] abeyance or without an owner; (e) but a man's right therein, when once suspended, is gone forever. This is not the case in corporations aggregate, where the right is never in suspense; nor in the other sole corporations before mentioned, who are rather to be considered as heads of an aggregate body, than subsisting merely in their own right; the chattel interest therefore, in such a case, is really and substantially vested in the hospital, convent, chapter, or other aggregate body; though the head is the visible person in whose name every act is carried on, and in whom every interest is therefore said (in point of form) to vest. But the general rule, with regard to corporations merely sole, is this, that no chattel can go to or be acquired by them in right of succession. (f) Yet to this rule there are two exceptions. One in the case of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors. (g) The other exception is, where, by a particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. And this custom, being against the general tenor of the common law, must be strictly interpreted, and not extended to any other chattel interests than such immemorial usage will strictly warrant. Thus the chamberlain of London, who is a corporation sole, may, by the custom of London, take bonds and recognizances to himself and his successors, for the benefit of the orphan's fund: (h) but it will not follow from thence, that he has a capacity to take a lease for years to himself and his successors for the same purpose; for the custom extends not to that: nor that he may take a bond to himself and his successors, for any other purpose than the benefit of the orphan's fund; for that also is not warranted by the custom. Wherefore, upon the whole, we may close this head with laying down this general rule; that such right of succession to chattels is universally inherent by the common law in all aggregate corporations, in the king, and in such single corporations as represent a [ *433 ] number of persons; and may, by special custom, belong to certain other sole corporations for some particular purposes; although generally, in sole corporations, no such right can exist. (1) VI. A sixth method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband with the same degree of property and with the same powers, as the wife, when sole, had over them. (c) Dyer, 48. Cro. Eliz. 464. (e) Brownl. 132. (1) [Thus, the ornaments of the chapel of a preceding bishop belong to his successor, and the bishop may take such chattels in succession.] |