« PreviousContinue »
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 purchafe. For this reason also I apprehend it is, that the antient jewels of the crown are held to be heir-looms"; 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 executore. By special custom also, in some places, carriages, utensils, and other household implements, may be heir-loomsf; 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 aedibus non facile revellitur 3,” 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" (2). A very similar notion to which prevails in the duchy of Brabant; where they rank certain things moveable among those of the immoveable
c Co. Litt. 8.
f Co. Litt. 18. 185.
been many fruitless attempts to make pictures, plate, books, and household furniture, descend to the heir with a family mansion. Where they are left to be enjoyed as heir-looms by the persons who shall respectively be in poffeflion of a certain house, or to de. scend as heir-locms as far as courts of law and equity will admit, the absolute interest of them, subject to the life-interests of those who have life-eftates in the real property, will veft in that person who is entitled to the first estate tail or estate of inheritance, and upon his death that interest will pass to his personal representative. i Bro. 274. 3 Bro. !01. . (2) See p. 281, n. 10, ante.
kind, calling them by a very particular appellation, praedia volantia, or volatile estates : such as beds, tables, aud other heavy implements of furniture, which (as an author of their own observes) “ dignitatem ifam nacta funt, 11t villis, ;lvis, “ et aedibus, aliisque praediis, comparentur ; quoil folidiora mo“ bilia ipsis aedibus ex destinatione patrisfamilias cchaerere vi
deantur, et pro parte ipfarum aedium aestimentur i.”
OTHER personal chattels there are,' which also desecnd to the heir in the nature of heir-looms, as a monument or tombstone in a church, or the coat-armor of his ancestor there hung up, with the pennons and other enligns 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 heirk. Pew's in the church are somewhat of the same nature, which may descend by custom immemorial(without anyecclefiaftical 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; 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
i Stockmans de jure devolutionis. c. 3. k 12 Rep. 105. Co. Litt. 18. $ 16.
13 Init. 202. 12 Rep. 105.
(3) The right to fit in a particular pew in a church arises either from prescription as appurtenant to a messuage, or from a faculty or grant from the ordinary, for he has the dilpolition of all pews which are not claimed by prescription. Gibt. Cod. 221.
In an action upon the case for a disturbance of the enjoyment of a pew, if the plaintiff claims it by prescription, he muit state it in the deciaration as appurtenant to a meilunge in the parish. This prescription may be supported by an enjoyment for thirty-six years, and perhaps any time above twenty years. I T. R. 428. In such an action against the ordinary, the plaintiff must allege and prove repairs of the pew. i Wilf. 326. Kk 4
foil, 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"; for the property thereof remains in the executor, or whoever was at the charge of the funeral (4).
But to return to heir-looms: 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 difposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might niangle 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 defcended.
m 3 Inft. 110. 12 Rep. 113. 1 Hal. P. C. 515. Co. Litt. 185.
(4) It has been determined, that stealing dead bodies, though for the improvement of the science of anatomy, is an indicable offence as a mildemeanour; it being a practice contrary to common decency, and shocking to the general sentiments and feelings of mankind. II. R. 733.
CHAPTER THE TWENTY-N IN TH.
OF TITLE BY SUCCESSION, MAR
RIAGE AND JUDGMENT,
TN the present chapter we shall take into consideration I three other species of title to goods and chattels,
V. The fifth method therefore of gaining a property in chattels, either personal or real, is by succession : which is, in strictness of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, malter and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, moveables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies : and therefore the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate a. Which identity is a property fo inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed : but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their succeflors, vests an absolute property in them so long as the corporation subfifts 6. And thus a lease for years, an obliga* 4 Rep. 65. • Pro. Abr. t. effates. go. Cro. Eliz. 464.
tion, a jewel, a flock of Neep, or other chattel interest, will vest in the succeslors, by succession, as well as in the identical members, to whom it was originally given.
But, with regard to fole corporations, a considerable diftinction must be made. For if such sole corporation be the representative of a number of persons ; as the master of an hospital, who is a corporation for the benefit of the poor brethren ; an abbot, or prior, by the old law before the reformation, who represented the whole convent; or the dean of fome antient cathedral, who stands in the place of, and re.' presents in his corporate capacity, the chapter; such sole corporations as these have in this respect the same powers, as corporations aggregate have, to take personal property or chattels in succession. And therefore a bond to such a master, abbot, or dean, and his successors, is good in law; and the fucceffor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representatives. Whereas in the case of sole corporations, which reprefent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession : and therefore, if a lease for years be made to the bishop of Oxford and his fucceffors, in such case his executors or administrators, and not his successors, ihall have it". For the word fucceffors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as fuch a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John bishop of Oxford and his successors, who are the heirs of his body politic, it shall still veft in his executors and not in such his successors. The reason of this is obvious : for, besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such fucceffors as are equivalent to heirs ; it would also fol. low, that if any such chattel interest (granted to a sole corporation and his successors) were allowed to defcend to such fucceffor, the property thereof must be in abeyance from the • Dyer 48. Cro. Eliz. 464.
a Co, Litt. 46.