the old cases, they go a great way upon the annexation to the freehold; and so long ago as Henry the seventh's time, the courts of law construed even a copper and furnaces to be part of the freehold. Since that time, the general ground the courts have gone upon, of relaxing this strict construction of law is, that it is for the benefit of the public to encourage tenants for life, to do what is advantageous to the estate during their term. What would have been held to be waste in Henry the seventh's time, as removing wainscot fixed only by screws, and marble chimney pieces, is now allowed to be done. Coppers and all sorts of brewing vessels cannot possibly be used, without being as much fixed as fire engines; and in brewhouses especially, pipes must be laid through the walls, and supported by walls; and yet, notwithstanding this, as they are laid for the convenience of the trade, landlords will not be allowed to retain them. This being the general rule, consider how the case stands as to the engine which is now in question. It is said, there are two maxims which are strong for the remainder man: First, that you shall not destroy the principal thing, by taking away the accessary to it. And this is very true in general, but doth not hold in the present case; for the walls are not the principal thing, as they are only sheds to prevent any injury that might otherwise happen to it. Secondly, it has been said, that it must be deemed part of the estate, be[303] cause it cannot subsist without it. Now collieries formerly might be enjoyed before the invention of engines; and therefore this is only a question of majus and minus, whether it is more or less convenient for the colliery. There is no doubt but the case would be very clear as between landlord and tenant. It is true, the old rules of law have indeed been relaxed chiefly between landlord and tenant, and not so frequently between an ancestor and heir at law, or tenant for life and remainder man. But even in these cases, it admits the consideration of public conveniency for determining the question. I think, even between ancestor and heir, it would be very hard that such things should go in every instance to the heir. One reason that weighs with me is, its being a mixed case between enjoying the profits of the land, and carrying on a species of trade; and considering it in this light, it comes very near the instances in brewhouses of furnaces and coppers. That case also of the cyder mill, between the executor and the heir, is extremely strong; for though cyder is part of the profits of the real estate, yet it was held by lord chief baron Comyns, a very able common lawyer, that the cyder mill was personal estate notwithstanding, and that it should go to the executor. It doth not differ it in my opinion, whether a shed over such an engine be made of brick or wood; for it is only intended to cover it from the weather and other inconveniences. This is not the case between an ancestor and an heir, but an intermediate

case between a tenant for life and remainder man.

The reason of the thing weighs most in favour of the tenant for life; and is like the case of corn growing, which shall go to the executor, and not to the heir or remainder man, it being for the benefit of the kingdom that corn should be sown. It is very well known, that little profit can be made of coal mines without this engine; and tenants for life would be discouraged in erecting them, if they must go from their representatives to a remote remainder man, when the tenant for life might possibly die the next day after the engine is set up. These reasons of public benefit and convenience weigh greatly with me, and are a principal ingredient in my present opinion. Upon the whole, I think this fire engine ought to be considered as part of the personal estate of Mr. Lawton, and go to the executor for the increase of assets. And decreed accordingly. 3 Atkyns, 13.

13. But if a man be seised of a house, and possessed of divers Heirheir-looms, that by custom have gone with the house from heir looms. to heir, it seemeth that these, although no part of the freehold, [304] shall go to the heir; and not to the executor; and therefore ought not to be put into the inventory. 1 Inst. 185.

So if an incumbent enter upon a parsonage-house, in which are hangings, grates, iron backs to chimnies, and such like, not put there by the last incumbent, but which have gone from successor to successor; the executor of the last incumbent shall not have them, but it seemeth that they shall continue in the nature of heir-looms: but if the last incumbent fixed them there only for his own convenience, it seemeth that they shall be deemed as furniture, or household goods, and shall go to his executor.

14. Writings and evidences, which touch the inheritance, shall go to the heir, and not to the executor. Went. 62.

And Swinburne says, that a box ensealed, or the chest with Boxes with evidence of the land, though the same be not affixed to the free- writings. hold, yet because they contain those things which belong to the heir, they also belong to the heir, and not to the executors; and therefore they are not to be put into the inventory of the deceased's goods. Swin. 421.

But as to this, Rolle makes a distinction, and saith, if the writings which concern the inheritance are in a chest, the executors shall have the chest, and the heir the writings. But if the chest be shut, the heir shall have the chest also; but if it be not shut, the executor shall have the chest. 1 Roll's Abr. 915.

But the author of the Law of Testaments observeth, that this distinction seemeth not to be well taken; for if it be a box purposed for the keeping of the deeds, the heir ought to have it, whether locked or open: on the other hand, if it be a box designed for other use, as for the keeping linen, it cannot be said to be appurtenant to evidences, although some be in it, for so

may other things also; or perhaps it may be a chest or cabinet of great value: surely this shall not go to the heir, when perhaps there is not personal estate sufficient to pay the testator's debts. Law of Test. 381.

If a further distinction seemeth necessary, it might be this: that if the executor will not open the box, and deliver the writings, the heir, rather than not have the writings, may take the box also; but if the executor will deliver the writings, and retain the box, it doth not seem that one box more than another can be [305] said to be appurtenant to writings, so as to divest the property thereof out of the executor.

Profits of

sold.

15. By the 21 H. 8. c. 5. § 5. If the person deceased shall lands to be devise any lands, tenements, or hereditaments, to be sold, neither the money thereof coming, nor the profits of the said lands for any time to be taken, shall be accounted as any of the goods or chattels of the said person so deceased.

Wife's paraphernalia. (u)

16. But what shall we say to those goods which may seem to belong to the wife rather than to the husband, as her apparel, her bed, her jewels, or ornaments for her person; whether are they to be put into the inventory of the husband's goods, yea or nay? By the civil law, those belonging to the wife, which be called bona paraphernalia, are not to be put into the inventory of her husband's goods, neither are they subject unto the payment of the husband's debts: but whether the wife's apparel, with her bed, jewels, and ornaments for her person, be comprehended amongst those goods which the law calleth bona paraphernalia, is the matter in question. And it seemeth rather that they are not (saith Swinburne); her convenient apparel, agreeable to her degree, only excepted. Otherwise, whatsoever goods belong to the wife, are presently by virtue of the marriage become the husband's, the property thereof being changed and transferred from the wife to the husband. Insomuch that without her husband's licence or consent, she cannot dispose thereof, neither by act in her lifetime, nor at her death by her last will, which she might do if they were bona paraphernalia; wherefore those goods being the husband's and not the wife's, and the property thereof being in him, and not in her, it may be concluded, that in construction of law, those goods above mentioned, and namely, the wife's jewels, chains, and borders, are to be put into the inventory of the deceased husband's goods. Swin. 422.

Rolle says, the wife after the death of her husband shall have convenient apparel for her body, and not the executors of her husband; and of this convenience the court must be the judge. But she shall not have excessive apparel: and if she takes more than is convenient, she shall be taken to be an executor of her own wrong. 1 Roll's Abr. 911. Law of Test. 383, 384.

(u) See Marriage, II. 4. ante, 74. note (2).

And if the husband deliver to his wife a piece of cloth for to make a garment, and dieth; although that this was not made into a garment in the life of the husband, yet the wife shall have [306] this, and not the executor of the husband; inasmuch as it was delivered to her to this intent: but against the debtee of the husband, the wife shall have no more apparel than is convenient. 1 Roll's Abr. 911.

But in the case of Hastings and Douglas, H. 9 Cha. A chain of diamonds and pearl, worth 370l., usually worn by sir John Davis's wife, who was daughter of the earl of Castlehaven, being by her husband's will devised from her; Berkeley and Jones were of opinion, that she being the daughter of a nobleman, and permitted to use them frequently as ornaments of her person, and they being convenient for her degree, she should have them as her paraphernalia; and when there are not debts to be paid (as it doth not appear that there are any in this case), she shall have them against the executors or administrators of her husband, and the husband cannot dispose of them from his wife by his will; but instantly by his death, the possession of them being in the wife's custody, the property is vested in her, and the husband cannot give them away; for it is not reasonable the husband should leave her naked of those jewels which she usually did wear, and are fit according to her calling to wear. But Richardson and Croke were of opinion, that the will was good, and that she may not take them contrary to the devise; but if the husband had not made his will of them, but had left them to the disposition of the law, and the question had been betwixt the executor or administrator and the wife, where there be not any debts or legacies to be paid, or where there be assets to pay all debts and legacies besides those jewels; there, peradventure, the law will allow her to take, and to enjoy them as her paraphernalia. Cro. Car. 343. 1 Roll's Abr. 911.

But in the case of Carey and Appleton, M. 26 C. 2., the husband devised the jewels, which were the paraphernalia of the wife, and died: They were decreed to the wife. 1 Cha. Ca. 240.

And by Macclesfield lord chancellor: Bona paraphernalia are not devisable by the husband from the wife, any more than heirlooms from the heir: so that the right of the wife to her paraphernalia is to be preferred to that of a legatee. 1 P. Will. 730.

But it is said, that bona paraphernalia shall not be retained by the wife against debts. And in the case of Stubbs and Stubbs, H. 31 C. 2., it was held, that where the real estate is chargeable, together with the personal, for the payment of debts, and the [307 personal estate is deficient, the bona paraphernalia shall be liable before the real estate shall come in. Cha. Ca. Finch. 415. (7)

(7) So in Grey v. Grey, Lord No t. MSS. 2 Swanst. Rep. App. 602.,

[308]

But in the case of Tipping and Tipping, M. 1721, by Macclesfield lord chancellor: Bona paraphernalia are liable to debts in favour of creditors only, and not in favour of the heir at law. 1 P. Will. 730.

And if creditors of the testator by judgment take the jewels after his death in execution, when the heir, or executor, or trustees, have other assets sufficient to pay such debts; this is a default in the trustee, for which the widow ought not to suffer as to her bona paraphernalia. 2 P. Will. 80.

And in Northey and Northey, Dec. 6, 1740, lord Hardwicke said, that the late cases have gone so far in the point of paraphernalia, that they have considered a wife in the nature of a creditor, and as having a lien upon real estate. Though the jewels in the present case were worth 3000l., yet (he said) the value makes no alteration: and that there are several cases where there have been debts standing out against the husband, and yet the wife has been admitted as a creditor to the value of the paraphernalia, even upon trust estates created for payment of debts. 2 Atk. 78, 79.

And in the case of Incledon and Northcote, Mar. 2, 1746, it was said by lord Hardwicke, that where there is a trust estate, charged with payment of debts, which is sufficient for that purpose, she may come round upon the trust estate to be reimbursed to the value of her paraphernalia, if the personal has been exhausted by her husband's creditors. And so it hath been determined in several cases. 3 Atk. 438. (x)

And in Snelson and Corbet, June 16, 1746, where the question was, whether paraphernalia shall be liable to the payment of simple contract creditors and legacies; lord Hardwicke said, at law, where the husband dies indebted, the widow cannot have her paraphernalia; but this court doth not determine so strictly for if the personal estate hath been exhausted in payment of specialty creditors, she shall stand in their place as to so much upon the real assets of the heir at law; for she has a prior right, and a superior one to legatees, who take only from the bounty of the testator. 3 Atk. 369.

:

Also if an husband pledges the wife's paraphernalia, and dies leaving a sufficient estate to redeem the pledge and pay all his debts; she shall be intitled to have it redeemed out of the husband's personal estate. But the husband may alienate the same in his lifetime. 3 Atk. 394, 395.

Also where a daughter's portion was to be paid out of her

the title to paraphernalia was not allowed to prevail against a son claiming for the benefit of creditors; and on such a claim the court cannot consider the quality of the party.

(x) See Boynton v. Parkhurst, 1 Bro. C. C. 576.