A Treatise on the Law of Executors and Administrators

dies before severance, his executor shall have the corn for the uncertainty of the determination of his estate. (x)

But there may be a case where the executor of the tenant for life has no right to emblements, on account of the deceased not having been the actual. party who sowed the land, and the consequent failure of the reason upon which the right is founded. Thus, if A., seised of land, sows it and then conveys it or devises it to B. for life, remainder to C. for life, and B. dies before the corn is reaped, in this case B.'s executors shall not have the emblements, but they shall go with the land to C. (y) And if A. seised in fee, sows land and conveys it to B. for life, remainder to C. for life, and both B. and C. die before severance, the crop shall not go to the executors of either B. or C., but revert to A. (2)

*If a disseisor sow the land of tenant for life, and the tenant for life die, the executors of the tenant for life shall have the corn, and not the disseisor, nor he in reversion. (a)

Right of

executors

of clergy

to emblethe glebe.

ments of

The executors or administrators of the incumbent of a benefice would probably at common law be entitled to the emblements of the glebe lands; for the deceased had an uncertain interest in the land, which was determined by the act of God. The right, however, is fully established by the statute 28 Hen. 8, c. 11, which provides and enacts, that in case any incumbent happens to die, and before his death. hath caused any of his glebe lands to be manured and sown at his own proper costs and charges with any corn grain, that then

have been a substantial claim to emblements here, and that the premises were, therefore, a farm or lands" within section 1; and it was also held that that section gave a right to distrain for the rent, as well as to recover it by action. Haines v. Welch, L. R. 4 C. P. 91.

p. 727.

and grants over his estate, and the grantee dies before the corn is severed, his executor shall not have it. By Popham and Gawdy JJ. in Knevett v. Pool, C.o. Eliz. 464. But if the devise be to B. for life, without remainders over, and B. dies before severance, the executor of B. shall

(x) 1 Roll. Abr. Emblements, A. pl. 12, have the corn, though B. did not sow. Winch. 51; Co. Lit. 55 b, note (2) from Hal. MSS.; ante, 714.

(y) Grantham v. Hawley, Hob. 135; Anon. Cro. Eliz. 61, recognized, Ib. 464; Spencer's case, Winch. 51; Co. Lit. 55 b, note, from Hal. MSS.; 1 Roll. Abr. 727, pl. 21; Gilb. Ev. 214. So if a man sows land and lets it for life, and the lessee for life dies before the corn is severed, his executor shall not have it, but he in reversion. So if tenant for life sows the land,

(z) Hobart, 132, in margine; Gilb. Ev. 215; but see the preceding note. [If the tenant for life dies before the crops are sowed, emblements will go to the remainder-man. Gee v. Young, 1 Hayw. 17.]

(a) Knevit v. Poole, Gouldsb. 146, by Popham and Fenner.

in that case every such incumbent may make his testament of all the profits of the corn growing upon the said glebe so manured and sown. (b)

If the successor be inducted before the severance of the emblements from the ground, the successor shall have the tithe thereof; for although the executor represents the person of the testator, yet he cannot represent him as parson, inasmuch as another is inducted. (c) Otherwise, if the parson dies after severance from the ground, and before the corn is carried off. (d)

Dowress

ecutors,

when entitled to

emblements.

If the husband sows the ground, and dies, and the heir assigns the land sown to his wife for her dower, she shall have and her ex- the crop, and not the executors of the husband; for she shall be in de optima possessione viri, above the title of the executor. (e) It was with reference to this especial *privilege of a dowress, that at common law she could not, according to the more general opinion, devise corn which she herself had sown, nor did it go to her executors or administrators; (f) but now, by the statute of Merton, 20 Hen. 3, c. 2, the representatives of a tenant in dower, like those of any other tenant for life, will be entitled to emblements. (g)

a husband

If tenant in dower sows the land, and takes husband, who dies Executor of before severance of the corn, the dowress shall have the of dowress. crops, and not the executor of the husband. But if the husband of a dowress sows the land, and dies before severance, then the executor of the husband shall have them. (h)

And, generally, with respect to the executor of a man seised in

(b) But a person who resigns his living is not entitled to emblements. Bulwer v. Bulwer, 2 B. & Ald. 470. The general rule of law is, that the tenant shall not have emblements when the tenancy is determined by his own act; as where the lessee surrenders, or a woman who is tenant durante viduitate marries, or the estate determines by forfeitures, condition broken, &c. Com. Dig. Biens, G. 2; Davis v. Eyton, 7 Bing. 154.

(9) See Com. Dig. Biens, G. 2, that the statute was only in affirmance of the common law. See, also, S. P. Perk. s. 522, and Gilb. Ev. 212. If two be tenants in common of land in fee, and one of them takes a wife, and dies, and the wife is endowed, &c. and she and the other tenant in common sow the land, &c. and afterwards she makes her executors, and dies, the corn not being severed, now her executors shall have the corn in common with him who

(d) Wats. C. L. 513, 4th ed.; 3 Burn

E. L. 415, 8th ed.

(e) 2 Inst. 81; Anon. Dyer, 316 a. (f) Bract. lib. 2, fol. 96; 2 Inst. 81.

(h) Bro. Abr. tit. Emblements, pl. 26; [Haslett v. Glenn, 7 Harr. & J. 17; Hall v. Browder, 4 How. (Miss.) 224.]

And if

of a man

seised in right of his wife.

right of his wife, the rule is, that if he sow and die Executor before severance, his executors shall have the emblements. (i) But it seems, that if the land was sown before marriage, the wife shall have them. (k) husband and wife are joint tenants for life, and the husband sows, and the land survives to the wife, it is also said that she shall have the corn. (1)

* The executor or administrator of a jointress, like dower, is entitled to emblements of the estate settled in jointure; but she is not entitled to them at her husband's death to the exclusion of her husband's executors, as a dowress is. (m)

any

Executor when huswife are joint ten

of husband

band and

ants.

tenant in Right of

executor of

a jointress ments.

to emble

Right of executors

of tenant by the

Upon the death of a tenant by the curtesy, like other tenant for life, the emblements of the estate held by the curtesy will go to his executors or administra- curtesy. tors. (n)

A tenancy at will (in the strict sense of the expression) is determined by the death of the lessee, and his executor or administrator will be entitled to emblements. (0)

Right of executor of

tenant at blements.

will to em

When there is a right to emblements, the law gives a free entry, egress, and regress, as much as is necessary, in Entry, order to cut and carry them away. (p) But the emble

(i) Co. Lit. 55 b; Swinb. pt. 3, s. 6, pl. 11, 253, 7th ed.; In Wentw. Off. Ex. p. 148, 14th ed., a case is put of the husband's sowing the land which his wife has for a term of years as executrix of another, and the author gives his opinion that the husband's executor would be entitled to the crop, at least so much as is more than the year's value of the land.

(k) 1 Roll. Abr. Emblements, A. pl. 17, p. 727; Gilb. Ev. 213.

(4) Co. Lit. 55 b, and the note to that passage from the Hal. MSS.; Anon. Cro. Eliz. 61, by Wray C. J.; Wentw. Off. Ex. 148, 14th ed. See, also, Godb. 189, pl. 270, by Coke C. J. But see Dyer, 316 a; S. C. nomine Arnold v. Skeale, Noy, 149; 1 Roll. Abr. 728, pl. 16; Rowney's case, 2 Vern. 322, 323; and Gilb. Ev. 213, contra, in which last book it is said that the land is not in such a case cultivated by a joint

egress, and regress to

stock (as in the ordinary case of joint tenancy), but it is wholly the corn of the husband, which property seems not to be entirely lost by committing it to their joint possession, no more than if it had been sown in the land of the wife only. It is said in Brooke, that if baron and feme tenants in tail sow the land, and the baron die before severance, the feme shall have the emblements and not the executor of the baron; contra, if the baron had sold or devised them in his life; for then the executor shall have them. Bro. Abr. Emblements, pl. 15. But Brooke adds, quære, car videtur mihi que l'executor eux avera.

(m) Fisher v. Forbes, 9 Vin. Abr. tit. Emblements, pl. 82, p. 373.

take the emble

ments.

ments do not give a title to exclusive occupation; and it is doubted in Plowden's Queries, (q) whether the executors of a lessee for life shall not pay rent for the land till the corn is ripe; though, perhaps, says that author, the executors of tenant in fee simple shall have the corn without paying for it.

*SECTION III.

Of the Estate of an Executor or Administrator in Chattels Personal Inanimate.

As to chattels personal inanimate. These are evident, viz, all household stuff, implements, and utensils, money, plate, jewels, corn, pulse, hay, wood felled and severed from the ground, wares, merchandise, carts, ploughs, coaches, saddles, and such like movable things. (r) All these pass to the executor and administrator; and although any one of them should be specifically bequeathed to a legatee, it will not vest in him till the executor has assented.

What chat

tels personal inanimate do

It is necessary to attend to three instances in which the right of the executor or administrator to the chattels personal inanimate of the deceased is barred, to some extent, in favor of certain special claimants: 1. Heir-looms, and things in the nature thereof, in respect of the heir or successor. 2. Fixtures, in respect of the heir or devisee, or in respect of the remainder-man or reversioner. 3. Paraphernalia and the like, in respect of the widow.

not pass to the execu

tor.

1. Heirlooms:

1. Heir-looms and Things in the Nature thereof.

It is proposed to consider, I. Heir-looms and things of the same nature, from which the executor or administrator is excluded in favor of the heir or successor. Heir-looms are such goods and personal chattels as shall go by special custom to the heir along with the inheritance, and not to the executor or administrator of the last proprietor. The termination "loom" is of Saxon origin, in which language it signifies a limb or member; so that heir-loom is nothing else but a limb or member of the (r) Wentw. Off. Ex. 141, 142, 14th ed.

(q) 239th query.

inheritance. (8) An heir-loom is also called "principalium," a chief or principal, and "hæreditarium." (t)

are

Brooke says (u) that heir-looms are those things which have continually gone with the capital messuage, by custom, what they which is the best thing of every sort, as of beds, tables, strictly: pots, pans, and such like of dead chattels movable. And Lord Coke says (x) that heir-looms are due by custom, and not by the common law, and that the heir may have an action for them at common law, and shall not sue for them in the ecclesiastical court. Also in Spelman's Glossary, (y) an heir-loom is defined to be "omne utensile robustius quod ab ædibus non facile revellitur, ideoque ex more quorundam locorum ad hæredem transit tanquam membrum hæreditatis." And in Les Termes de la Ley (2) (a book of great antiquity and accuracy), (a) an heir-loom is described to be "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) unto the heir and not to the executors."/ Hence, it seems to follow that an heir-loom, must go to the heir by in the strict sense of the word, can only go to the heir custom: by force of a custom, and that in its nature it is a chattel distinct from the freehold. Yet Blackstone (b) says, that heir-looms are "generally such things as cannot be taken away without damaging or dismembering the freehold ;" and Lord Holt is reported to have said at nisi prius, that goods in gross cannot be an heir-loom, but they must be things fixed to the freehold, as old tables, benches, &c.; (c) which proposition * is not only adverse to the authorities above cited, with regard to an heir-loom being a detached chattel, but is also liable to the objection that the heir would not then take it by custom, but as a thing annexed to the freehold at common law. Moreover, in the report of Lord Petre v. Heneage, by Lord

(s) 2 Bl. Com. 457. But in Byng v. Byng, 10 H. L. Cas. 183, Lord Cranworth, on the authority of Johnson and Webster, said he believed the more correct explanation of the word is, that it is an old AngloSaxon word, signifying goods or chattels. According to either derivation, it must mean something which, though not by its own nature heritable, is to have a heritable character impressed on it; an interpretation hardly to be reconciled with an

absolute gift to several persons as joint tenants. 10 H. L. Cas. 183.

(t) Bro. Discent. pl. 43; Co. Lit. 18 b. (u) Discent. pl. 43.

(x) Co. Lit. 18 b.

(y) Voce, Heir-loom.

(z) See Treat. on Fixtures, 162.
(a) 5 B. & C. 229.

(b) 2 Com. 427.

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A Treatise on the Law of Executors and Administrators, Volume 1