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the tenant was entitled to the crop of any vegetable of that nature, whether produced annually or not, which was growing at the time of the cesser of the tenant's interest; the defendant contended that he was entitled to a crop of that species only which ordinarily repay's the labor by which it is produced, within the year in which that labor is bestowed, though the crop may, in extraordinary seasons, be delayed beyond that period. And the latter proposition we consider to be the
It is not, however, absolutely necessary to decide this question ; for, assuming that the plaintiff's rule is the correct one, the crop which is claimed was not the crop growing at the end of the term. The last cestui que vie died in July ; the barley and the clover were then growing together on the same land, and a crop of both, together, was taken by the plaintiff in the autumn of that year; though the crop of clover of itself was of little value. Thus the plaintiff has had one crop; and if it were necessary, either generally, or in the particular case, that the crop taken should remunerate the tenant, we must observe, that though the crop of clover alone did not repay the expense of sowing and preparation, the case does not find that both crops together did not repay the expenses incurred in raising both. The decision, therefore, might proceed on this short ground; but as the more general and important question has been most fully and elaborately argued, we think it right to say we are satisfied that the general rule laid down by the defendant's counsel is the right one.
The principal authorities upon which the law of emblements depends, are Littleton, § 68, and Coke's Commentary on that passage. The former is as follows: “ If the lessee soweth the land, and the lessor, after it is sown and before the corn is ripe, put him out, yet the lessee shall have the corn, and shall have free entry, egress and regress to cut and carry away the corn, because he knew not at what time the lessor would enter upon him.” Lord Coke, Co. Lit. 55 a, says, “ The reason of this is, for that the estate of the lessee is uncertain, and, therefore, lest the ground should be unmanured, which should be hurtful to the Commonwealth, he shall reap the crop which he sowed in peace, albeit the lessor doth determine his will before it be ripe. And so it is if he set roots or sow hemp or flax, or any other annual profit, if after the same be planted, the lessor oust the lessee ; or if the lessee dieth, yet he or his executors shall have that year's crop. But if he plant young fruit trees, or young oaks, ashes, elms, &c., or sow the ground with acorns, &c., there the lessor may put him out notwithstanding, because they will yield no present annual profit.” These authorities are strongly in favor of the rule contended for by the defendant's counsel; they confine the right to things yielding present annual profit: and to that year's crop, which is growing when the interest determines. The case of hops, which grow from ancient roots, and which yet may be emblements, though at first sight an exception, really falls within this rule. In Latham v. Atwood, Cro. Car. 515, they were held to be “ like emblements,” because they were “ such things as grow by the manurance and industry of the owner, by the making of bills and setting poles :" that labor and expense, without which they would not grow at all, seems to have been deemed equivalent to the sowing and planting of other vegetables. Mr. Cruise, in his Digest, i. 110, ed. 3, says that this determination was probably on account of the great expense of cultivating the ancient roots. It may be observed, that the case decides that hops, so far as relates to their annual product only, are emblements; it by no means proves, that the person who planted the young hops would have been entitled to the first crop whenever produced.
On the other hand, no authority was cited to show that things which take more than a year to arrive at maturity, are capable of being emblements, except the case of Kingsbury v. Collins, 4 Bing. 202, in wbich teazles were held by the Court of Common Pleas to be so. But this point was not argued, and the court does not appear to have been made acquainted with the nature of that crop or its mode of cultivation, or it may be, that in the year when the plant is fit to gather, so much labor and expense is incurred, as to put it on the same footing as hops. We do not therefore consider this case as an authority upon the point in question.
The note of Serjeant Hill in 9 Vin. Abr. 368, in Lincoln's Inn Library, which Mr. Gambier quoted, is precisely in point in the present case, and proves that, in the opinion of that eminent lawyer, the crop of clover in question does not belong to the plaintiffs. It is stronger, because there the estate of the tenant is supposed to determine after harvest, whereas here it determined before.
The weight of authority, therefore, is in favor of the rule insisted upon by the defendant. There are besides some inconveniences, doubts, and disputes, which were pointed out in the argument, which would arise if the other rule were to prevail. Is the tenant to have the feeding in autumn, besides the crop in the following year? If so, he gets something more than one crop. Is he to have the possession of the land for the purpose? Or is the reversioner to have the feeding ; and, in that case, is the reversioner to be liable to an action if he omits to feed off the clover, and thereby spoils the succeeding crop? These inconveniences do not arise if the defendant's rule is adopted. It also prevents the reversioner from being kept out of the full enjoyment of his land for a longer time than a year at the most; whereas, upon the other supposition, that period may be extended to two or more years, according to the nature of the crop.
We are therefore of opinion that the rule regulating emblements is that which the defendant has contended for, and that for this reason also he is entitled to our judgment.. Judgment for the defendant."
1 See Reiff v. Reiff, 64 Pa. 134; Evans v. Iglehart, 6 G. & J. 171, 188 et seq. ; Flanagan v. Seaver, 9 Ir. Ch. 230.
COOPER v. WOOLFITT.
(Reported 2 H. & N. 122.) The declaration alleged that W. Cooper, in his lifetime and at the time of his death, was seised in fee of certain land called the “ Clay pits,” and being so seised sowed the same with a crop of corn and barley, which was growing thereon at the time of his death ; and that at the time of the committing of the grievances hereinafter mentioned, the plaintiffs, as executors, were entitled to the said crop of corn and barley, which was then growing on the said land, and to a right of way, &c., for the purpose of cutting and carrying away the said crop of corn and barley; that the crop was ripe and ready to be cut; yet the defendant obstructed the said way, and prevented the plaintiffs from entering and carrying away the said corn, &c.
Plea. That W. Cooper, by his last will, devised the said land, called the “ Clay pits,” unto one M. Woolfitt, to hold the same to the use of M. Woolfitt, her heirs and assigns forever, whereby M. Woolfitt became seised of the said land called the “ Clay pits,” and entitled to the crop of corn and barley growing thereon; and that M. Woolfitt being so seised and so entitled to the said crop of corn and barley, the defendant, as the servant of M. Woolfitt, committed the supposed grievances.
Replication. That W. Cooper, by his will, gave and devised the said land to M. Woolfitt, chargeable, nevertheless, with the payment of a legacy of £20 thereinafter bequeathed to Samuel Cooper, to hold the same, chargeable as aforesaid, unto and to the use of M. Woolfitt, her heirs and assigns forever. And, by his will, he gave and bequeathed to M. Woolfitt and Sarah Cooper, in equal shares, all his moneys, securities for money, household furniture, goods, chattels, personal estate and effects whatsoever and wheresoever not thereinbefore specifically bequeathed ; and by a codicil to his said will, duly executed, &c., he revoked the said bequest, in favor of the said M. Woolfitt, of one half part of the residue of his personal estate and effects, and bequeathed such one half part to the plaintiff, Henry Cooper, and afterwards died without altering his said will and codicil as to the said bequest, and that the corn and barley in the declaration mentioned was not specifically bequeathed by the will or codicil, or otherwise.
The defendant demurred to the replication. He also rejoined: That W. Cooper, by his said will, bequeathed to the said Samuel Cooper, the legacy of £20, to be payable at the end of twelve calendar months next after his decease, by M. Woolfitt, out of the close of land called “ Clay pits," &c. And he also bequeathed unto Joseph Cooper
securities for emplaintiff, Sarah will, gave an unter
absolutely, all that his post windmill, with the sails, gear and appurtenances; and that the said W. Cooper, by his said will, gave and bequeathed unto M. Wooltitt and the plaintiff, Sarah Cooper, in equal shares, all his moneys, securities for money, household furniture, goods, chattels, personal estate and effects whatsoever and wheresoever not therein before specifically bequeathed, subject to the payment of all his just debts, his funeral and testamentary expenses, as well as to the payment of legacies of £20 apiece unto James Cooper and E. Cooper, and he appointed thein, the said M. Woolfitt and Sarah Cooper, joint executrixes of his said will ; and that the said W. Cooper, by his said codicil, charged his aforesaid mill and appurtenances bequeathed to the said Joseph Cooper with the payment of the said two legacies of £20 apiece to the said James Cooper and E. Cooper, in exoneration of his residuary personal estate, and he appointed the plaintiff, Henry Cooper, joint executor with the said Sarah Cooper of his will.
The plaintiff demurred to the rejoinder.
POLLOCK, C. B. The question is, whether, under the large words employed by the testator in the bequest of personalty, the growing crops are so clearly given to the legatee as to take them out of the operation of the rule of law which, in case of a devise of the ground on which the crops stand, gives them to the devisee. A devisee takes more than the heir would have done ; for be is not hæres factus, but takes by conveyance. He is therefore entitled to everything which is appurtenant to the land, and as such to all crops growing on the land at the time of the testator's decease, unless it appears with certainty that the testator intended some one else to take them. Here it is impossible to say that it is clear that the testator intended to give these crops to the executors. I am therefore of opinion that there must be judgment for the defendant.
MARTIN, B. I am of the same opinion. The replication shows that the testator having given to M. Woolfitt the close called “ the Clay pits,” bequeathed to H. Cooper and S. Cooper all his personal estate whatsoever and wheresoever not thereinbefore specifically bequeathed. It is said that this applies to the crops growing on the land in question. But according to the well-established rule, they go to the devisee of the land unless expressly given by the will to some one else.
BRAMWELL, B. I am of the same opinion. It is said that the general bequest of the personal estate, not thereinbefore specifically bequeathed, shows that the emblements were not to go to the deviseo of the land. But, in fact, this amounts to nothing, because in every case where an executor is appointed all the personal effects vest in him.
CHANNELL, B. I am of opinion that the defendant is entitled to judgment upon each of the demurrers. The law is thus stated in Sheppard's Touchstone, by Preston, p. 472: “ As between an executor and devisee the emblements belong to the devisee, unless they are expressly bequeathed.” Here there is nothing either in the will or the codicil to cut down the effect of the devise to M. Woolfitt.
Judgment for the defendani.
IN RE ROOSE.
(Reported 17 Ch. D. 696.) MARGARET Roose, widow, deceased, by her will, dated the 24th of July, 1879, gave all her real estate to her daughter, Grace, the wife of Thomas Williamson, during her life, for her separate use, and after her decease to her children. The testatrix then proceeded as follows: “I give unto my granddaughter, Catherine Williams, the sum of £1,000, and all the household furniture, farming stock, goods, chattels and effects which shall be in and about Froudeg at the time of my decease.” And the residue of her personal estate the testatrix gave to her trustees, Thomas Evans and Owen Jones, — whom she also appointed executors, - upon trust for sale, and to hold the proceeds upon trusts for the benefit of her said daughter, Grace Williamson, her husband and children.
One of the questions raised in the action — which was for the administration of the personal estate of the testatrix - was whether the crops growing upon the testatrix's freehold farm called Froudeg at the time of her death passed to Grace Williamson as the devisee of the said farm, or to Catherine Williams as legatee of the “ farming stock.”
Ince, Q. C., and J. Maurice Lloyd, for the plaintiffs.
JESSEL, M. R. I am of opinion that I am bound by authority to hold that the specific legatee took the growing crops in question. This case seems almost identical with the reported cases. The words in Cox v. Godsalve were “ stock of my farms,” and the question was whether the corn growing passed to the defendant John Godsalve, who was devisee in remainder of the land sown, or whether it passed to his mother under a bequest of "all my goods, chattels, and stock of my farms." The argument was that you could not give the corn to the devisee of the land by implication against an express bequest. The judgment of Lord Holt was that the gift of the corn was to the mother and not to the son ; that is to say, he held that the words“ stock of my farms” included growing crops.
The point came before Lord Ellenborough, in 1807, in West v. Moore, where he treated the law as settled. There a testator bequeathed the “stock upon my farm, and all other my personal estate of what nature or kind soever; ” and it was held that that passed the growing crops as against the devisee of the land. What Lord Ellenborough says is this (8 East, 343): “ The case of Cox v. Godsalve, 6 East, 604 n., before Lord Holt, is in terms so much the same as this,