as much fixed as fire-engines; and in brew-houses especially, pipes must be laid through the walls, and supported by walls: and yet, notwithstanding this, as they are laid for convenience of trade, landlords will not be allowed to retain them. The old rules of law have been relaxed chiefly be-tween 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; and after making some more observations on the case, Lord Hardwicke says, 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 increase of assets. And decreed accordingly (6).

There are some goods and personal chattels called heirlooms, which, contrary to the nature of chattels, shall go by special custom to the heir along with the inheritance, and not to the executor or administrator of the last proprietor; and these are generally such things as cannot be taken away without damaging or dismembering the freehold. — If a man be seised of a house, and possessed of divers heir-looms, that by custom have gone with the house from heir to heir; it seemeth that these, although no part of the freehold, shall go to the heir, and not to the executor; and that if a man deviseth these away by his will, this devise is void".-By special custom in some places, carriages, utensils, and other household implements, may be heir-looms; but such custom must be strictly provede.Other personal chattels there are, which descend to the heir in nature of heir-looms, as a monument or tombstone in a church, or the coat-armour of his ancestor there hung up, with the pennons and other en

a 3 Atkyns, 13. 4 Burn's Eccles. Law, 244.

b

2 Black. Com. 427.

c 4 Burn's Eccles. Law, 247. d Co. Litt. 185.

e 2 Black, Com. 428.

(6) See also Elwes v. Maw, 3 East. 38. Buckland v. Butterfield, 4 B. Moore, 440. S.C. 2 Brod. & Bing. 54.

signs of honour suited to his degree (7). In this case, although the freehold of the church is in the parson, and these are annexed to that freehold, yet cannot the parson, or any other, take them away or deface them, without being liable to an action from the heir. Pews in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir. But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. The parson, indeed, who has the freehold of the soil, may bring an action of trespass against such as dig or disturb it; and if any one, in taking up a dead body, steals the shroud or other apparel, it will be felony; for the property thereof remains in the executor, or whoever was at the charge of the funeralf.

If chattels are bequeathed to go as heir-looms, due attention is necessary to be had to the rules of law concerning limitations of chattels, mentioned in a subsequent part of this work.

Charters and deeds, court-rolls, and other evidences of the land, together with the chests in which they are contained, shall pass together with the land to the heir, in the nature of heir-looms, and shall not go to the executor or administrator (8). But as to the chests, Rolle makes a dis

f 2 Black. Com. 428.

& Ibid.

(7) And a court of equity will order an inspection of articles claimed by the plaintiff, as heir-looms in a chest at the bankers of the defendant, who insists by his answer that he has a lien on the contents of the chest. Earl of Macclesfield v. Davis, 3 Ves. & Bea. 16.

(8) Where a bill was filed in Chancery for an antique horn with an ancient inscription, on the ground that it bad immemorially gone with the plaintiff's estate, and had been

tinction, and saith, if the writings which concern the inheritance are in the chest, the executor shall have the chest, and the heir the writings. But if the chest be shut, the heir shall have the chest also; if it be not shut, the executor shall have the chest h. The author of the Law of Testaments observes, that this distinction seemeth not to be well taken; for if it be a box intended 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 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, and this, he says, surely shall not go to the heir, when perhaps there is not personal estate sufficient to pay the testator's debts i.

Besides these things that are in the nature of heir-looms, there are some other goods and personal chattels that may not go to the executors or administrators; as paraphernalia, which our law uses to signify the apparel and ornaments of the wife, suitable to her rank and degree; and which she becomes entitled to at the death of her husband, over and above her jointure or dower, and preferable to all other representatives, and the jewels of a peeress usually worn by her, have been held to be paraphernalia. And the husband cannot by will devise from his wife such ornaments and jewels; though during his life, perhaps, he hath the power (if unkindly inclined to exert it) to sell them or give them away. But if she continues in the use of them till his death, she shall afterwards retain them against his executors and administrators, and all other persons, except creditors, where i Law of Test. 343.

h1 Roll's Abr. 915.

delivered to his ancestors by which to hold the land, the court was of opinion that if the land was of the tenure called Cornage, the heir had a title to this monument of antiquity at law. 1 Vern. 273. Harg. Co.Litt. 107.

there is a deficiency of assets (9). And her necessary apparel is protected even against the claim of creditors k. 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. If the husband delivers his wife a piece of silk to make a garment, and dies, although it was not made into a garment in the life of the husband; yet the wife shall have it, and not the executors of the husband; but against the debtee of the husband, the wife shall have no more apparel than is convenient1.-Where the question to be decided was, whether paraphernalia should 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 does not determine so strictly; for if the personal estate hath been exhausted in payment to specialty creditors ", she shall stand in their place, as to so much of the real assets of the heir at law; for she has a prior right, and a superior one to legatees, who take only by the bounty of the testator P. So likewise if the husband pledges the wife's paraphernalia, and dies, leaving a sufficient estate to redeem the pledge, and pay all his debts, she shall be entitled to have it redeemed out of the husband's personal estate. — But the husband may alienate the same in his lifetime; that is, he may transfer the property to another. To alienate, or to alien, chiefly relates to lands or tenements, as to alien land in fee, is to sell the fee-simple thereof.

k 2 Black. Com. 435.

11 Roll's Abr. 911.

m The Court of Chancery. For what specialty creditors are, see post.

• For what real assets are, see post.

P Snelson and Corbet, 3 Atk. 369. 9 3 Atk. 394.

(9) And if the husband pawn the wife's paraphernalia and die, leaving a fund sufficient to pay all his debts and to redeem the pledges, she is entitled to have them redeemed out of his personal estate. Graham v. Londonderry, 3 Atk. 395.

the

son.

of the owner.

Thus having proceeded with the particulars of what the administrator is interested in, we shall conclude this section with some observations on the law concerning personal property; as that the same is subject to that law which governs persons With respect to the disposition of it, and with respect to the transmission of it, either by succession, or the act of the party, it follows the law of the perThe owner in any country may dispose of his personal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession. For instance, if a foreigner having property in the funds here, dies, that property is claimed according to the right of representation given by the law of his own country. And where a person had possessed himself of a debt here, which was due to the intestate, a subject of Jersey, and whose personal property was therefore governed by the law of Jersey, (of which mention hath heretofore been made) Lord Hardwicke was applied to by his other relations resident in England, stating that they should be excluded from a share according to the distribution of Jersey, but that they should be intitled according to the distribution in England; and they therefore prayed by their bill, that the administratrix might be restrained from taking the property to Jersey. But his lordship would not restrain the administratrix, nor direct in what manner she was to dispose of the property, or to distribute it. And determined that she, having acquired a right to the property, was to distribute it according to the law which guided the succession to the personal estate of the intestate.

SECTION III.

Of making an Inventory.

THE executor or administrator is to make an inventory of all the goods and chattels, whether in possession or action of the deceased; which he is to deliver in to the ordinary