trust, to attend the inheritance, and a term constructively so attendant by implication and operation of equity. But the case of Willoughby v. Willoughby, has clearly negatived any such distinction between estates expressly made attendant upon the inheritance, and those so considered 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 growing upon the freehold.

PART VIII.

Things affixed to the Freehold.

A WILL must operate upon the testator's property according to the state it is found in at his death; therefore, unless an actual severance has taken place in the life-time of the testator, he is incapable by his will, unattested, of devising the appendages of the freehold, in separation from the subject to which they adhere. And, therefore, according to Perkins, title Devises, from whom Swinburn has copied the doctrine, those things, which after the death descend to the heir of the deceased, and

not to his executor, cannot be devised by testament, except in 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.

Therefore, if a man seised in fee of lands bequeath, Trees. 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 Corn growing. 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 legatee of his personal estate, as goods and chattels'. If there is no personal bequest that will apply to it, then an express devise of the lands themselves, though no mention is made of the corn, will give it to the devisee, as the law holds, in such case, that the intention of the testator was to pass the land, together with its fruits. But if there is neither bequest of the corn, nor devise of the land, it will go to the executor or administrator and not to the heir.

Fisher v. Forbes, 2 Eq. Ca. Abr. 392

e Winch 51. Cro. El. 61, 461. Roll Abr. 727. and see Cox 9. Godsalve, 6 East. 604. n. Gilb. Evid. 247.

Thus it has been always 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. But if one joint-tenant sows the land, and dies before it is reaped, the corn survives with the land (1), 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 (2). But the law is otherwise in respect to

e Hob. 132.

But if one of the joint-tenants

(1) Cro. El. 61. Dyer, 316. a. 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 and effectual, 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.

(2) Cro. El. 61. For the doctrine a to emblements, see Perk.

bage.

trees, and also the grass and herbage not separated from Grass and herthe ground at the time of the death of the testator; for this is not fructus industrialis; 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. And it will be the same if the natural product is encreased by sowing of hay-seed, or other assistances of cultivation'.

With respect to heir-looms (3) which by custom Heir-looms. have gone with 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.

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

sect. 530. Co. Litt. 41. 45. Hob. 132. Roll. Abr. 727. Gilb. Evid. 246. Com. Dig. tit. Biens, G. 1. c. 2.

(3) Loom is a word of Saxon original, signifying limb or member. Spelm. Gloss. 277.

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, without being liable to punishment for waste".

Deer in a real ancient park, fishes in a pond, doves in a dovehouse, and things in the like situation, though personal chattels, are so appropriated to the inheritance that they accompany the land wherever it vests, whether by descent or purchase': and so the charters, court rolls, and muniments of the estate, pass together with the land*; in like manner monuments, coats of armour, ensigns, and escutcheons, go to the heir in the nature of heir-looms: but the owner may, during his life, sell and dispose of these things if he please, as he may of the trees on the estate; and he is at liberty, as being complete owner, to do any injury to them without being accountable.

Pictures, plate, books, and furniture cannot be perpetuated in a course of descent, or made to go with the family mansion. When they are left, as is often the case, to be enjoyed by those who shall be in possession of the family residence, as far as law or equity will permit, the absolute interest, subject to the interest for life which may be created in

4 Rep. 64. et vid. Lawton . Lawton, 3 Atk. 12.

i Co. Litt. 8.

* Bro. tit. chattles, 18.