without controversy the personal property of said Benjamin at the time of his decease, was, after the date of her said appraisal, by her authority spread upon the lands which descended from her intestate; that this was done judiciously, in an agricultural view, and in the usual course of good husbandry. This manure was taken from the hotel stable standing on the land of said deceased. All the real estate of the deceased was afterwards sold for the payment of debts."

This case was argued in writing.

M. G. Cobb, for the plaintiff.

J. P. Converse, for the defendants.

HOAR, J. 1. The court are of opinion that manure from the barnyard of the homestead of the intestate, standing in a pile upon his land, although "not broken up nor rotten, and not in a fit condition for incorporation with the soil," is not therefore assets in the hands of his administratrix, and that she is not chargeable therewith as a part of his personal estate. Manure, made in the course of husbandry upon a farm, is so attached to and connected with the realty, that, in the absence of any express stipulation to the contrary, it passes as appurtenant to it. This has been so decided as between landlord and tenant, in the cases of Daniels v. Pond, 21 Pick. 367; Lassell v. Reed, 6 Greenl. 222; and Middlebrook v. Corwin, 15 Wend. 169. The reason of the rule is, that it is for the benefit of agriculture, that manure, which is usually produced from the droppings of cattle or swine fed upon the products of the farm, and composted with earth or vegetable matter taken from the soil, and the frequent application of which to the ground is so essential to its successful cultivation, should be retained for use upon the land. Such is unquestionably the general usage and understanding, and a different rule would give rise to many difficult and embarrassing questions.

The same doctrine was applied, as between vendor and vendee, in Kittredge v. Woods, 3 N. H. 503, and in Goodrich v. Jones, 2 Hill (N. Y.), 142. The doctrine as to fixtures and incidents to the realty is always most strictly held, as between heir and executor, in favor of the heir, and against the right to disannex from the inheritance whatever has been affixed thereto. Elwes v. Maw, 3 East, 51.

The circumstance that a thing is not permanently affixed to the freehold, but is capable of detachment, and is even temporarily detached from it, is not conclusive against the right of the owner of the land. Thus keys of doors go to the heir, and not to the executor. Wentworth on Executors, 62. And in Goodrich v. Jones, ubi supra, it was held, that fencing materials, which have been used as a part of the fence, accidentally or temporarily detached from it, without any intent of the owner to divest them permanently from that use, do not cease to be a part of the freehold. In Bishop v. Bishop, 1 Kernan, 123, the same principle was applied to the case of hop-poles, which had been taken up and laid in heaps for preservation through the winter; and it was held, that they would pass by a conveyance of the land.

Manure in,

stable is

Jersonal

2. The manure from the hotel stable, which is agreed to have been personal estate, and was included in the inventory, must be accounted for by the administratrix; and it is no sufficient account to say that she no dish has expended it upon the real estate which has since been sold for the Climbel payment of debts. There is no way in which it can be made certain that

Manue it has increased the amount received from the sale of the real estate; scarlived and if this were established, an administratrix has no right thus to on laude expend the personal property of her intestate.

files.

See Refereners

Boond prieliams

NOTE.

Real

CHAPTER VIII.

eal Prop

FIXTURES.

- As the subject of the annexation of buildings to land runs by imperceptible degrees into that of the annexation of fixtures, cases on it are included in this chapter.

3

HENRY'S CASE.

رہے

Глиналь антерид

COMMON PLEAS. 1505.

is freehold and Reported Year Book, 20 Hen. VII. 13, pl. 24.]

such
ACTION of trespass brought against executors by one Henry after the
thing death of his ancestor for the taking of a furnace which was fixed and
caunel annexed to the freehold with mortar. And the opinion of the court,
be alläckviz. LORD READ, Chief Justice of the Common Bench, FISHER, and
ed
are

KINGSMILL, his fellows, was that the taking was tortious. For those
ally things which cannot be forfeited by outlawry in personal actions, nor
be attached in assise, nor distrained by the lord for rent, such things
the executors will not have; but a furnace or table fixed to the ground
with posts, or a paling, or a bed covering, timber or board annexed to
the freehold, or a door and windows, and such other like things which
are annexed to the freehold, and are made for a profit of the inheri
tance, cannot be forfeited by outlawry nor attached on distress. Ergo
ex consequente sequitur that the executors will not have such things,
and although the testator could have given these things in his lifetime,
non sequitur that they will have them. And so the executors will not
have any documents concerning the land, although the testator bought
them, for they are appurtenant to the inheritance. And if the lessee
for years makes any such furnaces for his advantage, or a dyer makes
This is his vats and vessels to carry on his business [pur occupier son occupa-
instance tion] during the term, he can remove them; but if he suffers them to
rade
emain fixed to the land after the end of the term, then they belong to
be removed the lessor; and so of a baker. And it is no waste to remove such
lum
things within the term, according to some; and that will be contrary
the opinions aforesaid; for then it will not be adjudged parcel of the

suring

by for

freehold. But in H. 42 E. III., it remained therefore doubtful, whether
this was waste or not. T. 21 Hen. VII. 26.1

1 So a mortgagee in possession, after decree on a bill to redeem, but before posses-
sion taken, can remove his fixtures. Taylor v. Townsend, 8 Mass. 411.

1- Test: Advantage to the inheritance
2- Case refers to rights of

весел

affing

[Reported Year Book, 21 Hen. VII. 26, pl. 4.]

IN trespass the case was this. A man was seised of a house in fee simple, and made a furnace, viz. of lead, in the middle of the house, and it was not fixed to the walls of the house. He made executors and died, the heir entered, and the executors took the furnace, viz. of lead, and the heir brought an action of trespass.

Pollard. It seems that the action lies; for such things as are fixed and annexed to the freehold will descend to the heir with the inheritance, and so they will pass by feoffment with the freehold; as where vats are fixed in the ground, or in a brewhouse or dyehouse, they are appurtenant to the freehold, and altered from the nature of a chattel. And where a paling is made to enclose an enclosure or pond, the executors will not take it, but the heir will have it. So of things fixed to the inheritance they belong and pass with the inheritance and the freehold. And so in some cases such things as are not annexed to the land and the freehold descend and pass with the inheritance as the windows: they are not fixed, and yet neither the executors nor the termor will take them, but the heir will have them, because a house is not perfect without the doors and windows. But it is otherwise with glass, for a house is perfect enough, although it has no glass; and so there is a diversity. But in the case here, this furnace is altered by this fixing from the nature of a chattel. For it is adjudged in our books that an attachment in assise for a furnace is not good; and the reason is that it is not a removable chattel; and so the action here for the heir seems maintainable.

Grevill. Although this furnace is so fixed to the land, yet it is not therefore proved that it will go with the inheritance, so that it cannot be severed from the inheritance, for by such a reason if anything was fixed to the land by the tenant for term of years, it will be immediately called parcel of the inheritance, and the termor will not take it; and this is not so, for although he fixes a post in the ground during the term, and he retakes it within the same term, yet the lessor will not retake it. And in our case here it appears that this furnace was fixed to the ground within the house, so that the inheritance is none the worse for it, and where a furnace was fixed to the wall of the house, the better opinion in 42 E. III. was that it is not waste, although the termor takes it; and so it seems here, that the executors will take it, and the action is not maintainable.

Eliot. There is a difference when such a thing is fixed by the reversioner, and when the termor; for when it is done by the reversioner, and then he leases it rendering a certain rent, now it is made parcel of the reversion, for it makes the rent which is reserved on such a lease more than it would be if such a fixing had not been made. As where one

Note. What is a ficture in one state of or ich may not be in another der what is ind about gla and wrote. Fast! ad

advailage to forlatt.

makes vats and fixes them in a dyehouse or brewhouse, and then leases the house rendering a certain rent, now, by common reason, the rent is the greater, wherefore neither the termor nor the executor will take them; but where they are put in by the termor, he takes them: but here he who had the fee simple fixed this furnace, in which case the executors cannot take it, for the reason aforesaid.

KINGSMILL, [J.] After it is fixed to the freehold, it is incident to the freehold, although it is not parcel of the freehold, and it will go and pass always with the freehold; and although he to whom the freehold belongs after such fixing is outlawed, this furnace will not be distrained nor forfeited, and the reason is because it is annexed and fixed to the freehold; and for this reason the heir will have them after the death of his father, for such posts as are fixed by the father will belong always to the heir, and never to the executors. And where one is seised of land in fee, and buys documents concerning the same land, and dies, in that case the heir will have the documents, and not the executors; and the reason is because they concern the title to the land, although they are but chattels in themselves. And where one has fixed vats in a brewhouse or dyehouse and dies, the heir will have them; for when they are fixed, they are for the continual profit of the house, and therefore there is more reason that the heir should have them, whose is the freehold to which they are joined, than the executors, who have nothing to do with the freehold. But as to the lessee for term of years, if he has fixed such a thing to the ground, and not to the wall, he may well retake it during the term, (but if he lets it after the term, the lessor will take it,) for the taking of it is not any waste, because the house is not injured by it. But in the case here, it seems that the action is maintainable for the reasons aforesaid.

FISHER, [J.,] was of the same opinion.

READ, [C. J.] The executors will take all kinds of chattels which belonged to their testator, but that is where they are properly in the nature of chattels; now here when this furnace was annexed and fixed to the land, it is as to a thing of higher nature, and in a way is made incident to it. As in the case that has been put of sleeping tables, the heir will have them after the death of the father, and not the executors, and in reason it follows that when they are joined to the inheritance, it is in accordance with reason that they pass with the inheritance until they are severed by him who has authority to sever them, and that is he in whom is the inheritance. And as to the reason which has been given that the testator might have severed, and given or sold them, and that the executors can in like manner, that is no reason, for the testator could give the trees, and so cannot the executors; and as has been said at the bar, the furnace cannot be attached in assise nor distrained, and so by all the cases aforesaid it seems that the action lies; and so was the opinion of the whole court. Quod nota.1

1 See Keilw. 88, pl. 3.

"Nota, reader, Mich. 18 & 19 Devon it was adjudged in C. B. that waste might