« EdellinenJatka »
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 (6) t. But deer in a real au(a) Spelm. Gloss. 277.
(6) Co. Litt. 388.
ty should be disposed to give effect to titled to the possession. (Earl of Macthe clear intent, as far as it can be made clesfield v. Davis, 3 Ves. & Bea. 18). consistent with the rules of law: (Gower And clearly, where a testator gives spe. v. Grosvenor, Barnard. 56, 63; S. C. cific articles, intending them to descend 5 Mad. 338, 349. Trafford v. Trafford, as heir-looms, it is the duty of his ex3 Atk. 349): and Lord Eldon is re- ecutors to see that such intention takes ported to have said, that heir-looms are effect, as far as lies in their power. Crea kind of property which, like all spe- ditors may, indeed, by adopting comcific bequests, are rather favourites of pulsory measures, drive the executors the court of Chancery. (Clarke v. The off that ground; for, no testator can, Earl of Ormonde, Jacob's Rep. 115). in any way, exempt any part of his However this may be, it is settled, that property from payment of his debts; the absolute interest in chattels so given, but, executors are bound to preserve, vests in the first tenant in tail who as far as the law will permit them, all comes in esse. (Carr v. Lord Errol, 14 articles which their testator intended Ves. 487; and see ante, p. 175, and to have treated as heir-looms. (Clarke note (16) thereto subjoined). And v. The Earl of Ormonde, Jacob's Rep. Lord Hardwicke himself admitted, that, 112, 114). in the case of Gower v. Grosvenor, he It seems that the journals of the House went to the utmost allowable extent of of Lords, which are delivered gratuiconstruction, in favour of heir-looms. tously to each peer, are heir-looms de(Duke of Bridgwater v. Egerton, 2 Ves. scending with the title, and cannot be sen. 122). But, where a personal chat. retained by a deceased peer's personal tel has been well limited as an heir- representatives. (Upton v. Lord Ferloom, a bill in equity will hold for a rars, 5 Ves. 806). specific delivery thereof to the party en
| Mr. Christian observes, that “ if heirs of his body, he takes the entire any chattel be given to a man and the and absolute interest in it. There have
thorized park, fishes in a pond, doves in a dove-house, &c., though in themselves personal chattels, yet they are so annexed to, and so necessary to the well-being 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 antient 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, 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 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)t. A very similar notion to which prevails in the duchy of Brabant; where they rank certain things moveable among those of the immoveable 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 co“ hærere videantur, et pro parte ipsarum ædium æstimen
(c) Co. Litt. 8.
(S) Co. Litt. 18, 185.
been many fruitless attempts to make terest of them, subject to the life-inter-
" tur” (i).
Monuments or Other personal chattels there are, which also descend to tomb-stones.
the heir in the nature of heir-looms, as a monument or tomb
stone (3) in a church, or the coat-armor of his ancestor there [ *429 ] *hung up, with the pennons and other ensigns of honor, suit
ed 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 (k). Pews 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 (1) (4). But
(0) Stockmans De Jure Devolutionis, c. 3, s. 16.
(k) 12 Rep. 105. Co. Litt. 18. (1) 3 Inst. 202. 12 Rep. 105.
(3) The doctrine laid down in the with the churchwardens, as to seating text was confirmed in Spooner v. Brews- and arranging the parishioners; though ter, (3 Bingh. 138), where it was held, the advice of the minister, and even that trespass was the proper form of ac- sometimes the opinions and wishes of tion for the heir to adopt, if his ances- the vestry, may be fitly invoked by the tor's tomb-stone was removed or de- churchwardens. The general duty of faced.
the church wardens is to look to the (4) The right to sit in a particular general accommodation of the parish, pew in a church may arise, either from consulting, as far as may be, that of all prescription as a right appurtenant to its inhabitants. But, the actual exeran antient messuage, or from a faculty cise of the churchwardens' office, in or grant from the ordinary, who has this particular, is too frequently interthe disposal of all pews to which there fered with by faculties, appropriating is not a title by prescription. The dis- certain pews; and by prescriptive rights tribution of seats not so appropriated to pews, which rights most probably rests with the churchwardens, as the originated in faculties now lost. In the officers, and subject to the control of latter case, the parties claiming must the ordinary. Neither the minister nor shew the annexation of the pews to anthe vestry have any right to interfere tient messuages, time out of mind; and
though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or
also (if the contest is not with a mere case cannot be cited as in direct oppointruder, see infra) the reparation of sition to the decisions in Davis v. Witts, the particular pews by the tenants of and in Lousley v. Hayward. such messuages. (Fuller v. Lane, 2 For a pew in a church, appurtenant Addams, 425. Woollocombe v. Ould- by prescription to an antient messuage, ridge, 3 Addams, 6. Pettman v. Bridg- an action on the case lies; and against er, 1 Phillim. 323. Clifford v. Wicks, an intruder, long possession may be, 1 Barn. & Ald. 507).
prima facie, a sufficient title. (Stocks In Davis v. Witts, (Forrest. 18), it v. Booth, 1 T. R. 430). Mr. Justice was held, that a pew in the aisle of a Willes, indeed, said he would presume church might be prescribed for as ap- any thing in favour of the right of a purtenant to a house out of the parish. family which was proved to have sat in And in Lousley v. Hayward, (1 Younge a pew between thirty and forty years, & Jerv. 585), Chief Baron Macdonald without interruption. (Rogers v. Brooks, held, that such prescription might also 1 T. R. 432; and see Griffiths v. Matlie for a pew in the body of a church: thews, 5 T. R. 298). But though there for, very probably, the house, as ap- is no doubt an action on the case lies purtenant to which the pew was claim- for a seat in a church as appendant to ed, though not now within the parish, a house, and as, against a mere inaccording to its present boundaries, truder, no allegation that the plaintiff was formerly within the ecclesiastical has been accustomed to repair the same limits of the church; and therefore it is necessary, as it would be if the concould not be assumed that the prescrip- troversy were with the ordinary; (Bradtion must, of necessity, be bad in law. bury v. Burch, T. Jones, 3. Kenrick However, from one passage of the v. Taylor, 1 Wils. 327); nor need it be judgment pronounced in Byerley v. alleged, that the messuage to which th Windus, (as that case is reported in 5 right is appurtenant is an antient mesBarn. & Cress. 18), Mr. Justice Bay- suage, for the claim of a prescriptive ley may be thought to have held, that appurtenant right necessarily includes a non-parishioner could not claim a that fact; (Dawney v. Dee, Cro. Jac. seat in a church by prescription; but 605); still, it is only in cases where a that, if a man does not reside in the pew is annexed to a messuage by preparish, his right to use a seat, whatever scription, or where the pew is in a was the nature and origin of that right, chancel the freehold of an individual, is at an end. But that would be in- that such a question is triable at comconsistent with other passages in the mon law. (May v. Gilbert, 2 Bulstr same judgment, and also with the re- 151. Mainwaring v. Giles, 5 Barn. & port of the same case in 7 Dowl. & Ryl. Ald. 360). In Stocks v. Booth, (1 T. (see pp. 591, 595), where the learned R. 430), it was said, trespass will not judge seems to have admitted that such lie for entering a pew; but this seems a claim might be good by prescription at least doubtful, as, against a wrongor immemorial custom: so that this doer, there is authority for holding tres
ashes; nor can he bring any civil action against such as indecently 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 funeralt. lleir-looms can- But to return to heir-looms: these, though they be mere away from the chattels, yet cannot be devised away from the heir by will; 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.
not be devised
(m) 3 Inst. 110, 12 Rep. 113. 1 Hal. P. C. 515.
(n) Co. Litt. 185.
pass to be the right form of action. 140; S.C. Palm. 48. Spooner v. Brews-
| Mr. Christian observes, that "it practice contrary to common decency, has been determined, that stealing dead and shocking to the general sentibodies, though for the improvement of ments and feelings of mankind. (2 T. the science of anatomy, is an indictable R. 733).” offence as a misdemeanor; it being a