for terms of years, and consequently the title-deeds relating to them, are regarded as personal property (1). (2) Heirlooms, "the limbs or members of the inheritance such goods and personal chattels of a "ponderous and more robust character" as go by special custom to the heir, along with the inheritance, and not to the executor or administrator of the last proprietor. Personal property comprises movable things generally (except Personal those above mentioned), or as they are commonly called, "goods property. and chattels," money, debts, stock in the public funds, shares in companies (with the exception of New River Shares (2) and a few others), patents, copyrights, and other matters which will be considered hereafter. Under the head of personal estate fall also interests in land Chattels for years. Such interests, since they savour, as is said, of the real. realty, have acquired the name of "chattels real." All leases and terms of lands, tenements, and hereditaments, which are for a definite space of time, no matter how long that time may be, are deemed chattel interests, and as such pass to a man's personal representatives on his decease (3). An important point, however, was decided with regard to chattel interests in real estate in a case before the Lord Chancellor (sitting as Master of the Rolls) in 1873 (4). In that case the question arose whether an English statute, which we shall consider hereafter (post, p. 73), the Thellusson Act, forbidding the accumulation of income beyond a certain period, applied to leasehold property belonging to a testator who was domiciled abroad (5). The Lord Chancellor decided that it did, and in delivering judgment expressed himself as follows: "The territory and soil of England by the law of nature and of nations, which is recognized also as part of the law of England, is governed by all statutes which are in force in England. Thus leasehold property in Belgrave Square is part of the territory and soil of England, and the fact that the testator had a chattel interest in it, and not a freehold interest, makes it in no way whatever less so. An Act of Parliament limiting the periods for which accumulations are permitted has as much force in (1) Williams on Executors, 8th ed. p. 730. (2) New River Shares are real property: Drybutter v. Bartholomew, 2 P. Wms. 127; so also are Avon Navigation Shares: Howse v. Chapman, 4 Ves. 542; Shares of Tolls of Lighthouses: Attorney-General v. Jones, 1 Mac. & G. 574; and see Tyssen's (4) Per Selborne, L.C., for M.R., (5) See, as to domicil, p. 1002, et seq. Chattels personal. Belgrave Square, and upon every part of the property in the land of Belgrave Square, as it has in any other part of England, and for that purpose, it appears to me to be totally immaterial what is the quantity of interest dealt with by the will . . . . "Domicil is allowed in this country to have the same influence as in other countries in determining the succession of moveable estate; but the maxim of the law of the civilised world is mobilia sequuntur personam, and is founded on the nature of things. When mobilia are in places other than that of the person to whom they belong, their accidental situs is disregarded, and they are held to go with the person. But land, whether held for a chattel interest or held for a freehold interest, is in nature, as a matter of fact, immoveable and not moveable” (1). The real substance of the law is, that so strong is the force of the immovable character where it is found, that it will attract to itself primâ facie things which are ambiguous, at least to the extent of obliging other nations to recognise the law of the place where the immovable property is situate. The principle thus laid down has been applied in several cases. In a case where a married woman domiciled in Italy died possessed of leaseholds in Ireland, and her husband, who survived her, was only entitled by Italian law to a limited interest in the leaseholds, but by the law of Ireland he was entitled absolutely, the Court decided that the case was governed by the Irish law (2). Again, in a more recent case (3) where a Scotchman died intestate as to leaseholds situate in England the devolution of the leaseholds was treated as governed by the English law. There are also certain important descriptions of property which lie, as it were, on the border-land between real and personal estate, and are under some circumstances regarded as real, and under others as personal property. The reader will find the subject of chattels personal elaborately considered in Williams on Executors, under three heads: 1, chattels animate; 2, chattels vegetable: 3, chattels inanimate. Chattels animate are divided into such as are domestic and such as are feræ naturæ. Animals, tame and domesticated, horses, kine, sheep, poultry, and the like are personal chattels. Hounds, greyhounds, and spaniels (4), pigeons, rabbits, &c., when tame, fall under the same category. (') Per Selborne, L.C., for M. R. in Freke v. Lord Carbery, L. R. 16 Eq. 461. (2) In the Goods of Gentili, Ir. R. 9 Eq. 541. (3) In re Duncan and Lawson, 41 Ch. D. 394. (*) "And why not?" asks an old writer, cited, Williams on Executors, 8th ed. p. 710, note, "for although hounds, greyhounds, and spaniels be for the most part but things of plea There are certain animals, on the other hand, which are treated as real property. They are regarded as incident to the freehold inheritance, and do not pass to the executor or administrator. Thus deer in a park (1), unless reclaimed, conies in a warren, doves in a dove-house, do not go to the executor or administrator, as personal property. Personal effects of a vegetable nature or chattels vegetable, Chattels vegetable. as they are called, when severed from the body of the plant, or severed from the ground, as the case may be, are treated as personal estate. On the other hand, as stated in Williams on Executors, apples, pears, and other fruits, if hanging on the trees at the time of the death of the ancestor, shall go to his heir, and not to his executor or administrator. So it is of hedges, bushes, &c., for all these are the natural or permanent profits of the earth, and are reputed parcel of the ground whereon they grow (2). The law on this subject was recently considered by the Court of Appeal in a case when the question arose whether a number of beech trees, more or less blown down by extraordinary gales, were to be treated as real or personal estate. "The question, and the only question," said the Lord Chancellor, "put in the baldest and broadest form, is, whether or not the tree is affixed to the soil. If it is, it is realty; but if it is severed, it is personalty." "The question," added another of the judges, "is not whether a particular tree can grow as a tree naturally would grow, but whether it is fixed to the freehold. All we can do is to say that trees which are severed from the soil are personal estate, and trees which are not severed belong to the inheritance. The life and growth certainly afford no test as to whether a tree is or is not affixed to the soil" (3). A somewhat similar principle as to the necessity of actual severance was involved in the old decision that timber trees "could not be felled with a goose quill" (*). Vegetable products of land or crops, which are produced by Embleannual labour, are regarded as personal property, even though ments. not severed from the land; so far, at least, that they do not sure, that hindereth not, but that they may be valuable, as well as instruments of music, both tending to delight and exhilarate the spirits." (1) Morgan v. Earl of Abergavenny, 8 C. B. 768; Ford v. Tynte, 2 J. & H. 150-153, where it was said that "to reclaim deer makes them no longer venison in a park but chattels like any other domesticated auimals." (2) Williams on Executors, 8th ed. p. 713. (3) Per Cotton, L.J., in Re Ainslie. Swinburne v. Ainslie, 30 Ch. Div. 485. (4) Liford's Case, 11 Co. 50; see however, Williams on Executors, >th edit., p. 713, where cases are mentioned where trees though not actually severed were treated as divided from the land by sale or graut. Fixtures. Distinctions between real and personal property. belong to the heir, but pass to the executor or administrator. Such crops are called emblements (1). When personal inauimate chattels are affixed to the freehold they are called fixtures. What are fixtures? The general principle on which the law proceeds has been stated by a great judge in a well-known judgment as follows: "Perhaps," says Blackburn, J., "the true rule is, that articles not otherwise attached to land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land, even slightly, is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue a chattel; the onus lying on those who contend that it is a chattel" (2). The general principle on which the law proceeds is quicquid plantatur solo, solo cedit, i.e., whatever is affixed to the realty is thereby made parcel of it, and partakes of all its incidents and properties. This "hard maxim" of our law was recently considered by the House of Lords, when Lord Blackburn said that it was much too broadly stated, even as the general rule. In this case the present law was stated to be that where a person, himself the owner of the fee, has annexed any chattels of his own to his own land, he does not always cause the property in the chattels to cease to be personalty. No doubt he generally intends to make them part of the inheritance, and when he does so intend there can be no question that on his death before severance the heir takes, and not the executor; but the rule, like all other rules, has received from time to time judicial modifications to suit the exigencies of modern life and modern progress, and numerous exceptions and qualifications have been grafted on it in favour of trade, agriculture, and in furtherance of the rights of creditors (3). Real and personal property differ in certain essential particulars, which may be shortly stated as follows:(1) The most important distinction which exists between (1) As between the devisee and the executor these crops are however regarded (unless the contrary intention clearly appears by the will) as real property Cooper v. Worlfitt, 2 Hurl. & N. 122. (2) Holland v. Hodgson, 41 L. J. C. P. 146; L. R. 7 C. P. 328; Chidley v. Churchwardens of West Ham, 32 L. T. (N.S.) 486; Cross v. Barnes, 46 L. J. Q. B. 479; 36 L. J. 693. (3) Wake v. Hall, 8 App. Cas. 195, 203, 211; and see the cases on the subject of fixtures reviewed under Elwes v. Mawe, Smith's Leading Cases. tions property. real and personal estate is in respect of descent in case of Distincintestacy. Real property, upon the death of the owner intestate, between descends to the heir (see post, p. 50, et seq.). Personal property, real and on the other hand, upon the death of the owner intestate, if he personal be domiciled in England, goes to an administrator appointed by the Court, to be distributed according to the provisions of the Intestate's Estates Act, 1890, and the Statutes of Distributions (post, p. 341, et seq. (1)). A similar distinction occurs as regards property given by will. Real property passes at once to the devisee, while personal property passes in the first instance to the executor of the will, and through him to the legatee. (2) A further distinction is with regard to the interests recognised in the law which can be enjoyed in real and personal estate. The first lesson, said the late Mr. Joshua Williams, to be learned on the nature of real property is this-that of such property there can be no such thing as an absolute ownership; the utmost that can be held or enjoyed in real property is an estate. With regard to personal property, however, the primary rule is precisely the reverse. Such property is essentially the subject of absolute ownership, and cannot be held for any estate. Practically, however, as pointed out by Mr. Watson, by means of trusts, estates and interests in personal property may be created which to a great extent correspond to similar interests in real estate. Thus for instance in wills personal property may be given upon trust for one person for life with remainders over, and to such bequests effect is duly given by the Courts (2). (3) The law with regard to real estate is the lex sitús, or lex loci rei sitæ, i.e. the law of the country where the property is situated. Both as regards the capacity of transferring and the necessary forms to effect the transfer of real estate, the law of the country of which the land is an integral part is alone competent to speak. Real Property, says Mr. Jarman, is generally governed by the lex loci rei site; and, hence, the place where a will happens to be made, and the language in which it is written are wholly unimportant, as affecting both its construction and the ceremonial of its execution; the locality of the devised property is alone to be consider d. Thus a will made in Holland and written in Dutch must, in order to operate |