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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. Woolfitt 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 them, 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.

Bittleston, for the defendant.

Joseph Brown, for the plaintiff.

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 he 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 devisee 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 defendant.

IN RE ROOSE.

CHANCERY. 1880.

[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.

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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.

Russell Roberts, for Grace Williamson.

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.

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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,

that it must conclude it: though but for that case I should have been more inclined to think that stock on the farm meant movable stock.' That shows that Lord Ellenborough decided upon the words "stock upon my farm" and nothing else.

Then the point seems next to have come, in 1825, before Lord Gifford, Master of the Rolls, in Blake v. Gibbs (note to Vaisey v. Reynolds, 5 Russ. 13). That was the case of a testatrix who was tenant for life only of a plantation in Jamaica on which the growing crops in question stood. The only question was whether the word "stock" included the growing crops. By her will the testatrix devised "all and every her negro, mulatto, and other slaves, men, women, and children, and all her cattle, mules, horses, asses, and other live and dead stock" upon the plantation. The question was, what was the meaning of the words "and other live and dead stock." It was argued on the authority of Cox v. Godsalve and West v. Moore, 8 East, 339, that a bequest of the stock upon a farm would include growing crops. In delivering judgment, Lord Gifford says this (5 Russ. 16): "The two cases, which have been cited, prove, that the emblements are part of the stock, and will pass under the description of stock on a farm; and I cannot help thinking that the claim of the specific legatee is stronger here than in either of those cases, from the circumstance of the testatrix having been only tenant for life."

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Then the point seems to have come, in 1828, before Sir John Leach in Vaisey v. Reynolds, Ibid. 12, and what he says is very odd. There the gift was of "all and every my book debts, moneys in hand, stock in trade in my dwelling-house, shop, and malting; and also my farming stock of every kind and description whatsoever; and Sir John Leach held that the growing crops did not pass under the gift of the farming stock, as against the devisee of the land, because there was no gift of the residuary personal estate to the legatee of the farming stock. I must say I think he was entirely wrong. No one would hold that a general bequest of personal estate would pass growing crops as against the devisee of the real estate, that under a gift of the real estate to A. and of the personal estate to B., A. would not take the growing crops, yet that is the substance of Sir John Leach's decision. As Lord Holt's decision in Cox v. Godsalve is reported, we cannot tell what his reasons were; but Lord Ellenborough says, in West v. Moore, that a gift of the "stock on my farm" will pass the growing crops as against the devisee of the land; and Lord Gifford, in Blake v. Gibbs, also says that the growing crops will pass under the description of stock on a farm. But Sir John Leach says this (5 Russ. 17): "In the case of Cox v. Godsalve, where the words of the gift to the executor were 'stock of my farms,' there were other words in the gift which comprised all personal estate. And in West v. Moore, where the words of the gift to the executor were,' stock upon my farm,' the whole personal estate of every nature and kind was, in terms, comprised in the gift. These cases were between the executor and the devisee of the land."

on:

That is not quite correct: in Cox v. Godsalve it is true that the mother, who was the legatee of the stock, was one of the executors, but the stock was not given to her as an executor. Then Sir John Leach goes "And the rule is, that, although crops on the ground are personal estate, and, generally speaking, pass to the executor, yet, as between the executor and the devisee, the devisee will take them with the land, unless the intention of the testator appears to be otherwise. In these two cases such intention seems to have been inferred, rather because the executor was plainly meant to take the whole personal estate, than from the mere force of the words stock of my farm,' or 'stock upon my farm.'" All I can say is, having read the case before Lord Ellenborough, I think Sir John Leach made a mistake. Lord Ellenborough says "stock upon my farm," in so many words, passes the growing crops, showing that those were the words he relied upon. I am therefore of opinion that the distinction taken by Sir John Leach between those two cases and the case before him is quite untenable. Then the last case is Rudge v. Winnall, 12 Beav. 357, in 1849, before Lord Langdale, M. R. There the testator devised real estate to his trustees and executors, in trust for A., and bequeathed "all his live and dead stock" and the whole of his personal estate to the same trustees and executors upon trusts for various persons. Vaisey v. Reynolds, 5 Russ. 12, was cited in the argument, and the Master of the Rolls held that the growing crops formed part of the personal estate of the testator; but I cannot find from the report whether he so decided on the ground of the gift of the whole personal estate or of the gift of "live and dead stock; consequently that case does not help me any further than the previous

cases.

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In the present case the gift is in these terms: "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." Now, the words "farming stock" would of themselves pass the growing crops, and they would not form part of his general personal estate as against the legatee of the farming stock. The question is whether they pass to the legatee as against the devisee of the real estate. As Lord Ellenborough said in West v. Moore, the question is one of intention. What he says is this (8 East, 343): "The case of Cox v. Godsalve, before Lord Holt, is in terms so much the same as this, that it must conclude it though but for that case I should have been more inclined to think that stock on the farm meant movable stock." By which he means that Cox v. Godsalve decided that stock on the farm included stock that was not movable. Then, after saying that, as against the executors, the standing corn goes to the devisee of the land, he proceeds: "This is founded upon a presumed intention of the devisor in favor of his devisee. But this again may be rebutted by words which show an intent that the executor shall have it." Then he notices the case before Lord Holt, observing that the only difference between that case and the

one before him was that in the former case the legatee of the stock was not the sole executor, and that there was no material distinction between the two cases: and he winds up by saying, "and a construction having been once put upon these words, the question is now concluded." So that he says the question was concluded by the construction put upon the words "stock on the farm," that is, without reference to any other words.

Now, in my opinion, a construction having been put upon these words, I must treat the question as concluded. I must, therefore, hold that in using the words "farming stock in and about Froudeg," the testator intended to include, and that they did include, the growing crops, and I so decide.

Plif sold his land

مجھ الحسن

TERHUNE v. ELBERSON.

s. on SUPREME COURT OF JUDICATURE OF NEW JERSEY. 1810.
[Reported 2 Penning. 533.]

which was

grain.

Held ital THE Action below was an action of trespass, for cutting down and

مع

Swisttaking away eighty bushels of rye, and twenty bushels of wheat of the

Plaintiff below, Elberson, by the defendant below, Terhune, the 7th
July, 1810.

The defence set up, was, that the defendant below purchased the land on which he cut the wheat and rye of the plaintiff below, the 4th May, 1810, and had gone into possession of the premises under the said deed, on which the wheat and rye was cut at the time of cutting it, which fact appeared by the record.

It was contended by the plaintiff below, that although he did sell the land on which the wheat and rye was cut, to the defendant, in May, and give him possession thereof, yet that this sale did not convey the wheat and rye growing on the land. That whoever sowed in peace should reap in peace. The cause was tried by a jury, and verdict and judgment for the plaintiff for $30, with costs.

BY THE COURT. The doctrine of emblements does not apply to this case. The sale and conveyance of the land in fee simple, carried with it the wheat and rye growing on the land, unless the wheat and rye was specially reserved, which was not pretended.

Let the judgment be reversed.

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