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prelates in England, seems to be of the same nature: though sir Edward Cokey 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 acknowleged 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, [427] or gown, and tippet: his cup, and cover: his bason 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 parsons 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 value 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.

y 2 Inst. 491.

2 BLACKST.-55.

Z pag. 413.

3. Heirlooms 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 [see note 77, page 652], 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 heirloom 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. But deer in a real authorized park, fishes in a pond, doves in a dove-house, etc., though in themselves personal [428] 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. For this reason also I apprehend it is, that the antient jewels of the crown are held to be heirlooms; for they are necessary to maintain the state, and support the dignity, of the sovereign for the time being. Charters likewise, 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 heirlooms, and shall not go to the executor.e By special custom also, in some places, carriages, utensils, and other household implements, may be heirlooms; 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 dam

a Spelm. Gloss. 277.

b Co. Litt. 388.

c Co. Litt. 8.

d Ibid. 18.


Bro. Abr. tit. chatteles. 18. f Co. Litt. 18. 185.

*Cited, 17 Ind. 391, 394; 79 Am. Dec. 486; 28 N. J. L. 586; 137 Mass.

age, "quod ab ædibas non facile revellitur," 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. 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 8 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 heirlooms, as a monument or tombstone in a church, or the coat-armor of his ancestor there [429] hung up, with the pennons and other ensigns of honor, suited to his degree. In this case, albeit the freehold of the 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, Pews in the church [see note 78, page 653] are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir. But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes [see note 79, page 655]; nor can he bring any civil action against such as inde

g Spelm. Gloss. 277.

h 12 Mod. 520.

i Stockmans de jure devolutionis. c. 3. ? 16.

k 12 Rep. 105. Co. Litt. 18.

1 3 Inst. 202. 12 Rep. 105.

4 Prior editions have here, "marble."

8 Previously, "peculiar."

*Cited, 15 Wend. 220; 21 N. J. L. 328.

cently 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 an 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.*

But to return to heirlooms: these, though they be mere chattels, yet cannot be devised away from the heir by will; but such a devise is void," 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.


(77) Heirlooms are such goods and personal chattels as shall go by special custom to the heir along with the inheritance, page 427.

What is the meaning of the words "special custom" here and in the rest of this passage? Certainly not that of the particular customs mentioned, 1 Com. 74, and 2 Com. 263, which are of local force. Nor is it a custom "used among one set of subjects" like the law merchant and trade usages (1 Com. 75), for the heirloom is not so used. It is plain, too, that by the reasoning of 2 Com. 263, 264, the right to an heirloom must be prescriptive and not customary in its nature, and 3 Inst. 110. 12 Rep. 113. 1 Hal. P. C. 515.


n Co. Litt. 185.

+-* Quoted, 99 Mass. 284: 96 Am. Dec. 761; first sentence, 23 S. C. 39: 55 Am. Rep. 2. Cited, 130 Mass. 423; 39 Am. Rep. 466; 3 Edw. Ch. 178; 63 N. H. 20.

thus again a part of the common law: which defeats the reasoning of Blackstone (p. 429), where he tries to show that a devise must necessarily be postponed to such a custom. For while that may be true of a local custom, which, by its nature, excludes common-law rights, it is meaningless when applied to a rule of the common law itself. And even if the heirloom be considered as a fixture, or as an extension of the same principle by which fixtures are made a part of the realty, this would not account for the rule that a devise of the heirloom by a tenant in fee-simple is void, as Blackstone states in the passage last cited.

All our books treat of the heirloom as something that may find place in American law, even though not often actually found there. But the object of this note is to suggest the question whether there is any authority for such a rule: whether the heirloom should not be treated with us as simply obsolete, as much so as heriots or mortuaries. That a chattel may be made by settlement or devise to follow the title of an estate in land as a fixture does, is admitted. But there is no authority, I think, for saying that any tenant in feesimple may not sever it again, as he may sever any part of the soil or of the physical contents of the close. (See note 7 to chapter 1, ante.)

It is to the senseless repetition of such obsolete forms of law, or of legal rights, that is due much of the student's difficulty in acquiring clear notions of the law now in force; and from that again springs much of the uncertainty and error in the application of the law to actual cases which constitute the greatest and bestfounded reproach against the law in the minds of laymen.

(78) But though the heir has a property in the monuments of his ancestors he has none in their bodies

or ashes, page 429. Nor, as it appears, has the personal representative or

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