appendages of the freehold, which a tenant cannot remove or destroy without being guilty of waste'. If a man seised in fee of lands bequeath, by Trees. will sufficient only to his trees growing upon carry personal estate, all ing. death, such devise is void. But if he devise away the Corn grow 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 which 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". 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 part cular is, that the corn is fructus industrialis, and he who sows it has a kind of property in it divided 4 Rep. 64. and see Lawton v. Lawton, 3 Atk. 12. 'Winch 51. Cro. El. 61, 461. Roll. Abr. 727. and sec Cox v. Godsalve, 6 East. 604. n. Gilb. Evid. 247. Grass and herbage. 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 trees, and also the grass and herbage not separated from the 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 na 'Hob. 132. (1) Cro. El. 61. Dyer, 316. a. But if one of the joint-tenants 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 as to emblements, see Perk. tural product is increased by the sowing of hay-seed, or other assistances of cultivation ". looms. With respect to heir-looms (3) which by custom Heirhave 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 to the devise. Deer in a real ancient park, fish 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 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. 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 them, will vest in the person who is entitled to the first estate of inheritance, whether in tail or in fee, and upon his death will devolve upon his personal representatives'. Mortgages, in equit SECTION IX. Mortgages. WE have seen, a little above, in the case of at able consi- tendant terms, an instance wherein chattel interests deration, are not within the specting statute of frauds. in land, though devisable at law by a will not execlauses re- cuted and attested according to the statute, are from wills in the the particular view taken of them in courts of equity, deemed by those tribunals to be as much the objects of the requisitions of the statute as estates of inheritance. The converse of the doctrine holds in respect to mortgages; this interest being regarded in courts of equity as entirely personal, a will unattested seems clearly to be capable of passing the beneficial right to the land; so that the devisee, under such a will of the land mortgaged, would be permitted by the court to use the name of the heir to compel payment of the money, or make the pledged estate his own by fore '1 Bro. C. C. 274. 3 Bro. C. C. 101., and see the Note subjoined to the Precedent in the Appendix where this provision occurs. closure. In equitable contemplation the estate in the land remains in the mortgagor, while, in respect to the interest of the mortgagee, the land takes the character of personalty as following the nature of the debt, to which it is a collateral security; in so much that if a mortgagee, after making his will, forecloses the mortgage, or obtains a release of the equity of redemption, the mortgaged lands will not pass inclusively, under the general words, lands, tenements, and hereditaments, contained in the will, but will go as an acquisition, or purchase subsequent to the will, to the testator's heir at lawa. In the consideration of equity, therefore, mortgages do not seem, as to the beneficial interest, to be within the words lands and tenements,' in the fifth clause of the statute; nor will such interest in general pass by a devise of lands, tenements, and hereditaments (1). But if a mortgagee by Vide Casborne v. Scarfe, 1 Atk. 605. Sir Litton Strode v. Lady Russell, 2 Vern. 621. Winn v. Littleton, 1 Vern. 3. 2 Vent. 351. 3 P. Wms. 62. 66 gave (1) 2 Vern. 621. L. being seized of several manors and lands, and also of mortgages in fee, which were forfeited, and of a great personal estate, having no issue, made his will, and after devising part to his wife for life, and other legacies, all other his lands, tenements, and hereditaments, out of settlement, to his nephew." And one of the questions in the case was, whether these mortgages passed by the will under the general words, lands, tenements, and hereditaments? It was held by the Lord Chancellor, the Master of the Rolls, Lord Chief Justice Trevor, and Justice Tracy, that the mortgages in fee, though forfeited when the will was made, did not pass by these general words. But the decree in that case, as it is stated in the Register's book, B. 1707, fol. 510, takes no notice of any mortgages, except those whereof the testator, 93 |