tively so attendant by implication and operation of equity. But the case of Willoughby v. Willoughby,(m) has clearly negatived any such distinction between estates expressly made attendant upon the inheritance, and become so by construction of equity in which case it was also laid down by Lord Hardwicke, that the term, in whatever manner it may have become attendant, may be disannexed and turned into a term in gross at any time, by the owner of the inheritance.

As to wills affecting things affixed to or

on the free

* [365]

A will must operate upon the testator's property according to the predicament it is found in at his death; therefore, though perhaps, as I have before taken occasion to observe in the second part of the fourth chapter,(n) on contracts, a thing annexed growing upto the land, if contemplated as severed therefrom, and so con- hold. verted in the view of the parties into a separated chattel, is not within the fourth clause of the fourth section of this statute; yet, unless an actual severance has taken place in the life-time of the testator, he is incapable by his will, unattested, of devising these appendages of the freehold, in separation from the subject to which they adhere. And, therefore, according to Perkins, title Devises, from whom Swinburn(0) has copied the doctrine; these things, which after the death descend to the heir of the deceased, and not to his executor, cannot be devised by testament, except in such cases where it is lawful to devise lands, tenements, or hereditaments. So the law stood before the statute of frauds, and so, I apprehend, it remains, in relation to the new requisites to a devise of freeholds introduced by that statute.

It appears, therefore, to be safe upon analogy to old principles, to hold, that if a man seised in fee of lands bequeath, by will sufficient only to carry personal estate, all his trees growing upon his land at the time of his death, such devise is void. But if he devise away from his heir the corn growing upon the same land at the time of his death, such devise will be good by a will unattested. The trees are parcel of the freehold till actually severed, and unless devised away by a will applicable to freehold, descend, together with the land, to the heir; but the corn which was sown by the testator, shall go to the executor, as part of his personal goods ;(7) unless there be an express devise of the lands themselves, in which case, though no mention is made of the

(m) 1 T. R. 763. (n) Page 126. (9) Part 3, sect. 6. v. Forbes, 2 Eq. Ca. Abr. 392.

(p) Fisher

corn, the law holds that the intention of the testator was to pass the land, together with its fruits, and the devisée shall take the *[ 366 ] - corn against the executor.(9) A testator may, therefore, *bequeath his standing corn, sown by himself, to whom he pleases, by an unattested will.

Thus it has always been held, that if a man be seised of land in right of his wife, and sow the land, and devise the corn growing thereon, and die before the corn be reaped, the legatee shall have the corn, and not the wife. The reason of the law in which particular is, that the corn is fructus industrialis, and he who sows it, has a kind of property in it, divided from the land, gained by the very act of sowing it.(r) But if one joint-tenant sows ⚫ the land, and dies before it is reaped, the corn survives with the land,(128) because he gained no exclusive property by the act of sowing it, for he had no exclusive property in the land. But if A, seised of land, sow it with corn, and then convey it to B for life, remainder to C for life, and then B die before the corn is reaped, C shall have it, and not the executors of B, though his estate was uncertain, for the reason of industry and charge fails. And if B and C both die, then the lessor who sowed the corn shall have it.(129) But the law is otherwise in respect to trees, and also the grass and herbage, not separated from the ground at the time of the death of the testator, for this is not fructus in*[367]、 dustrialis, and, therefore, as a tenant for life, cannot, by a will

properly executed to pass freehold estate, make any disposition thereof to operate after his death, so neither can the owner of the land in fee-simple pass it in separation from the land by a will executed only to pass chattel and personal property.

(q) Winch, 51. Cro. El. 61, 461.

Roll. Abr. 727. (7) Hob, 132.

(128) Cro. El. 61. Dyer, 316. a. But if one of the joint-tenants occupies the land alone, by the consent of the other, and takes the profits alone to his own use, it seems that if he sows the land, he may devise the standing corn away from the survivor, as fructus industrialis, and such devise will be good since the statute of frauds. without witnesses; for it is said, that such assent to his sole occupation of the land amounts to a lease at will, and as such, gives a title to emblements; but such assent by the companion must be express and positive. Cro. El. 314.

(129) Cro. El. 61. For the doctrine as to emblements, see Perk. sect. 530. Co. Litt. 41, 45. Com. Dig. tit. Biens, G. 1. c. 2.

With respect to heir-looms which by custom have gone with Heir-looms. a house, they cannot be devised separately by the owner of the fee-simple, even by a will executed to pass freehold estates, for the will does not take effect till after the death of the testator, and by his death the heir-looms, by ancient custom, are vested in the heir, and the law prefers the custom before the devise.(8)

Things which belong to the realty by simple annexation to the freehold, may not be devised away by a will unattested, unless they were separated before the death of the testator, for they are as much, freehold as the land itself, until such separa tion takes place; and of this description are doors, windows, and even furnaces and ovens, and tables and benches, if fixed and mortised in the earth, and so in general all those appendages of the freehold, which a tenant cannot remove or destroy, with out being liable to punishment for waste.(t)

in equitable

considera

tion are not within the specting

clauses re

wills in the statute of

We have seen, a little above, in the case of attendant terms, Mortgages an example of an interest in land, devisable at law by a will not executed and attested according to the statute, but from the particular view taken thereof in courts of equity, deemed by those tribunals to be as much the objects of the requisitions of the statute as estates of inheritance. The converse of this doctrine holds in respect to mortgages; this interest being regarded frauds. in courts of equity as entirely personal, a will unattested seems clearly to be capable of passing the beneficial right of the land, so that the devisee under such a will of the land mortgaged, would be permitted by the court to use the name of the heir to compel payment of the money, or *make the pledged estate his * [ 368 } own by foreclosure. In the third part of the preceding chapter, an attempt was made to exhibit the true consideration under which a mortgage comes into a court of equity, by recurring to which, the principle upon which this exemption in equity of this description of property stands, will readily present itself. It was there shown, that in equitable contemplation the estate in the land remains in the mortgagor, while, in respect to the interest of the mortgagee, the land takes the character of personalty, as following the nature of the debt, to which it is a collateral security; insomuch that if a mortgagee, after mak

ing his will, forecloses the mortgage, or obtains a release of the equity of redemption, the mortgaged lands will not pass inclusively, under the general words lands, tenements, and hereditaments, contained in the will, but will go as an acquisition, or purchase subsequent to the will, to the testator's heir at law.(u)

In the consideration of equity, therefore, mortgages do not seem, as to the beneficial interest, to be within the words lands and tenements,' in the fifth clause of the statute; nor will such interest in general pass by a devise of lands, tenements, and he[369] reditaments;(130) but if a mortgagee *by his will expressly de(1) Vide Casborne v. Scarfe, 1 Atk. 605. Sir Litton Strode v. Lady Russell, 2 Vern. 621. Winn. Littleton, 1 Vern. 3. 2 Vent. 351. 3 P. Wms. 61-2.

(130) 2 Vern. 621. L being seised of several manors and lands, and also of mortgages in fee, which were forfeited, and of a great personal estate, having no issue, made his will, and after devising part to his wife for life, and other legacies, "gave all other his lands, tenements, and hereditaments, out of settlement, to his nephew." And .one of the questions in the case was, whether these mortgages passed by the will under the general words, lands, tenements, and hereditaments? And it was held by the Lord Chancellor, the Master of the Rolls, Lord Chief Justice Trevor, and Justice Tracy, that the mortgages in fee, though forfeited when the will was made, did not pass by these general words. But the decree in that case, as it is stated in the Register's book, B. 1707, fol. 510, takes no notice of any mortgages, except those whereof the testator, after making his will, had purchased the equity of redemption. The case of Winn . Littleton, 1 Vern. 3, presents a particular ground for construing the mortgaged lands out of the general words. And according to Reg. lib. 1680, fol. 452, the decree leaves it equivocal, whether the party directed to convey was devisee or heir. Upon the whole, there seems to be no good ground for holding mortgaged lands not to pass by the general words, uncontrouled in their effect by inference from the particular dispositions. The case ex parte Bowes, stated in the note to Casborne v. Scarfe, 1 Atk. 605, edit. Saund. has been denied in later cases, and the doctrine seems now settled, that the intent may restrain the generality of the expression. Vid. But. Co. Litt. 203, b. n. 96, and Duke of Leeds v. Munday, 3 Vez. jun. 348. Where the devise is to executors, or trustees, for paying debts, the intent is promoted by construing the mortgaged lands to pass. Vid. ex parte Sergison, 4 Vez. jun. 147.

vises the mortgaged lands, or makes a general devise of his lands, having only mortgaged lands, it should seem, that the interest in the money is thereby carried to the devisee, and the right in equity to the land, as the pledge, accompanies, although the will be not attested according to the statute. It is clear, that the mortgagor cannot pass his equity of redemption by a will unexecuted, according to the statute; and if the mortgagee were also under the same restriction, the statute would cut two ways, and equity would be inconsistent with itself, inasmuch as such double operation of the statute would imply the existence of the real estate at the same moment in two persons distinctly. The truth seems to be, that the mortgagee's interest is contemplated in this court rather as a right than an estate, while the equity of redemption assumes rather the quality and characteristics of an estate, than a right. Thus it was said by Lord Hardwicke, that in the eye of a court of equity, the equity of redemption was the fee-simple of the land,(x) and though [370] Sir M. Hale called it an equitable right, yet he added, that it

was inherent in the land, binding all persons coming in the post, or otherwise.(131)

1

(x) 1 Bl. Rep. 145.

quitable con

sideration of a mortgage,

as personal estate, is not permitted to narrow the effect of the statute of mortmain,

(131) Hard. 469. Yet there are bounds to the expansion of this But this edoctrine of transmutation of estates, in the equitable notion of a mortgage. Thus, if it were applied to the statute of mortmain, it would militate against the obvious purposes of the legislature in the provisions of that law. It was, therefore, determined by the Master of the Rolls, (Sir John Strange) in the Attorney-General v. Meyrick, 2 Vez. 44. that where a mortgagee in possession devised the benefit of his mortgage to a charity, it was within the mortmain act. And his honour would not allow the distinction attempted to be made on the part of the relator, between a devise of the mortgaged premises, and of the money due on mortgage. Nor did the circumstance of the mortgagee being in possession under a habere facias possessionem, 'seem to weigh at all in the case, the reason of the determination being, that the devisee would acquire a right of making the pledged estate his own by foreclosure, unless the money were paid. His 'Honour observed, that by a gift of all one's mortgages to A, the whole beneficial right passes to him; and be the legal estate either in the heir, or executor, each would be considered as a trustee for A, who would be permitted by the court to use their names, to get the