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 au(b) Co. Litt. 388. (a) Spelm. Gloss. 277. ty should be disposed to give effect to the clear intent, as far as it can be made consistent with the rules of law: (Gower v. Grosvenor, Barnard. 56, 63; S. C. 5 Mad. 338, 349. Trafford v. Trafford, 3 Atk. 349): and Lord Eldon is reported to have said, that heir-looms are a kind of property which, like all specific bequests, are rather favourites of the court of Chancery. (Clarke v. The Earl of Ormonde, Jacob's Rep. 115). However this may be, it is settled, that the absolute interest in chattels so given, vests in the first tenant in tail who comes in esse. (Carr v. Lord Errol, 14 Ves. 487; and see ante, p. 175, and note (16) thereto subjoined). And Lord Hardwicke himself admitted, that, in the case of Gower v. Grosvenor, he went to the utmost allowable extent of construction, in favour of heir-looms. (Duke of Bridgwater v. Egerton, 2 Ves. sen. 122). But, where a personal chattel has been well limited as an heirloom, a bill in equity will hold for a specific delivery thereof to the party en Mr. Christian observes, that "if any chattel be given to a man and the titled to the possession. (Earl of Macclesfield v. Davis, 3 Ves. & Bea. 18). And clearly, where a testator gives specific articles, intending them to descend as heir-looms, it is the duty of his executors to see that such intention takes effect, as far as lies in their power. Creditors may, indeed, by adopting compulsory measures, drive the executors off that ground; for, no testator can, in any way, exempt any part of his property from payment of his debts; but, executors are bound to preserve, as far as the law will permit them, all articles which their testator intended to have treated as heir-looms. (Clarke v. The Earl of Ormonde, Jacob's Rep. 112, 114). It seems that the journals of the House of Lords, which are delivered gratuitously to each peer, are heir-looms descending with the title, and cannot be retained by a deceased peer's personal representatives. (Upton v. Lord Ferrars, 5 Ves. 806). heirs of his body, he takes the entire 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)†. 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 vola Monuments or tomb-stones. tile 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"tur" (i). Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tombstone (3) 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 (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 (?) (4). But (i) Stockmans De Jure Devolutionis, c. 3, s. 16. (k) 12 Rep. 105. Co. Litt. 18. (3) The doctrine laid down in the text was confirmed in Spooner v. Brewster, (3 Bingh. 138), where it was held, that trespass was the proper form of action for the heir to adopt, if his ancestor's tomb-stone was removed or defaced. (4) The right to sit in a particular pew in a church may arise, either from prescription as a right appurtenant to an antient messuage, or from a faculty or grant from the ordinary, who has the disposal of all pews to which there is not a title by prescription. The distribution of seats not so appropriated rests with the churchwardens, as the officers, and subject to the control of the ordinary. Neither the minister nor the vestry have any right to interfere with the churchwardens, as to seating and arranging the parishioners; though the advice of the minister, and even sometimes the opinions and wishes of the vestry, may be fitly invoked by the churchwardens. The general duty of the churchwardens is to look to the general accommodation of the parish, consulting, as far as may be, that of all its inhabitants. But, the actual exercise of the churchwardens' office, in this particular, is too frequently interfered with by faculties, appropriating certain pews; and by prescriptive rights to pews, which rights most probably originated in faculties now lost. In the latter case, the parties claiming must shew the annexation of the pews to antient 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 intruder, see infra) the reparation of the particular pews by the tenants of such messuages. (Fuller v. Lane, 2 Addams, 425. Woollocombe v. Ouldridge, 3 Addams, 6. Pettman v. Bridger, 1 Phillim. 323. Clifford v. Wicks, 1 Barn. & Ald. 507). In Davis v. Witts, (Forrest. 18), it was held, that a pew in the aisle of a church might be prescribed for as appurtenant to a house out of the parish. And in Lousley v. Hayward, (1 Younge & Jerv. 585), Chief Baron Macdonald held, that such prescription might also lie for a pew in the body of a church: for, very probably, the house, as appurtenant to which the pew was claimed, though not now within the parish, according to its present boundaries, was formerly within the ecclesiastical limits of the church; and therefore it could not be assumed that the prescription must, of necessity, be bad in law. However, from one passage of the judgment pronounced in Byerley v. Windus, (as that case is reported in 5 Barn. & Cress. 18), Mr. Justice Bayley may be thought to have held, that a non-parishioner could not claim a seat in a church by prescription; but that, if a man does not reside in the parish, his right to use a seat, whatever was the nature and origin of that right, is at an end. But that would be inconsistent with other passages in the same judgment, and also with the report of the same case in 7 Dowl. & Ryl. (see pp. 591, 595), where the learned judge seems to have admitted that such a claim might be good by prescription or immemorial custom: so that this case cannot be cited as in direct opposition to the decisions in Davis v. Witts, and in Lousley v. Hayward. For a pew in a church, appurtenant by prescription to an antient messuage, an action on the case lies; and against an intruder, long possession may be, prima facie, a sufficient title. (Stocks v. Booth, 1 T. R. 430). Mr. Justice Willes, indeed, said he would presume any thing in favour of the right of a family which was proved to have sat in a pew between thirty and forty years, without interruption. (Rogers v. Brooks, 1 T. R. 432; and see Griffiths v. Matthews, 5 T. R. 298). But though there is no doubt an action on the case lies for a seat in a church as appendant to a house, and as, against a mere intruder, no allegation that the plaintiff has been accustomed to repair the same is necessary, as it would be if the controversy were with the ordinary; (Bradbury v. Burch, T. Jones, 3. Kenrick v. Taylor, 1 Wils. 327); nor need it be alleged, that the messuage to which th right is appurtenant is an antient messuage, for the claim of a prescriptive appurtenant right necessarily includes that fact; (Dawney v. Dee, Cro. Jac. 605); still, it is only in cases where a pew is annexed to a messuage by prescription, or where the pew is in a chancel the freehold of an individual, that such a question is triable at common law. (May v. Gilbert, 2 Bulstr 151. Mainwaring v. Giles, 5 Barn. & Ald. 360). In Stocks v. Booth, (1 T. R. 430), it was said, trespass will not lie for entering a pew; but this seems at least doubtful, as, against a wrongdoer, there is authority for holding tres Heir-looms cannot be devised heir, by will. 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 funeral†. 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; 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. |