us, and preserve that name, seeming rather to be of Saxon parentage, and at first to have been merely discretionary (h). These are now for the most part confined to copyhold tenures, and are due by custom only, which is the life of all estates by copy; and perhaps are the only instance where custom has favoured the lord. For this payment was originally a voluntary donation, or gratuitous legacy of the tenant; perhaps in acknow. ledgment of his having been raised a degree above villeinage, when all his goods and chattels were quite at the mercy of the lord; and *custom, which has on the one hand confirmed the tenant's in- [*424] terest in exclusion of the lord's will, has on the other hand established this discretional piece of gratitude into a permanent duty. An he riot may also appertain to free land, that is held by service and suit of court; in which case it is most commonly a copyhold enfranchised, whereupon the heriot is still due by custom. Bracton (i) speaks of heriɔts as frequently due on the death of both species of tenants: est quidem alia praestatio quae nominatur heriettum; ubi tenens, liber vel servus, in morte sua, dominum suum, de quo tenuerit, respicit de meliori averio suo, vel de secundo meliori, secundum diversam locorum consuetudinem." And this he adds, "magis fit de gratia quam de jure ;" in which Fleta(k) and Britton (2) agree thereby plainly intimating the original of this custom to have been merely voluntary, as a legacy from the tenant; though now the immemorial usage has established it as of right in the lord.

This heriot is sometimes the best live beast, or averium, which the tenant dies possessed of (which is particularly denominated the villein's relief in the twenty-ninth law of king William the Conqueror), sometimes the best inanimate good, under which a jewel or piece of plate may be included: but it is always a personal chattel, which, immediately on the death of the tenant who was the owner of it, being ascertained by the option of the lord (m), becomes vested in him as his property; and is no charge upon the lands, but merely on the goods and chattels. The tenant must be the owner of it, else it cannot be due; and therefore on the death of a feme-covert no heriot can be taken; for she can have no ownership in things personal (n). In some places there is a customary composition in money, as ten or twenty shillings in lieu of a heriot, by which the lord and tenant are both bound, if it be an indisputably ancient custom; but a new composition of this sort will not bind the representatives of either party; for that amounts to the creation of a new custom, which is now impossible (0).

*2. Mortuaries (4) are a sort of ecclesiastical heriots, being a [*425] customary gift claimed by and due to the minister in very many parishes on the death of his parishioners. They seem originally to have been, like lay heriots, only a voluntary bequest to the church; being intended, as Lynde wode informs us from a constitution of archbishop Langham as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesiastical duties, which the laity in their lifetime might have neglected or forgotten to pay. For this purpose, after (p) the lord's heriot or best good was taken out, the second best chattel was re served to the church as a mortuary: 66 si decedens plura habuerit animanta

(k) Lambard. Peramb. of Kent, 492.

(i) 1. 2, c. 36, ◊ 9.

(k) l. 3, c. 18

(7): 64

(m) Hob. 60.

(n) Keilw. 84. 4 Leon. 239.

(o) Co. Cop 6 31.

(p) Co. Litt. 185.

(4) See Burn. Ecc. L. tit. Mortuaries.

optimo cui de jure fuerit debitum reservato, ecclesiae suae sine dolo, fraude, seu contradictione qualibet, pro recompensatione subtractionis decimarum personalium, necnon et oblationum, secundum melius animal reservetur, post obitum, pro salute animae suae (q)." And therefore in the laws of king Canute (r) this mortuary is called soul-scot (raplreeat) or symbolum animas. And, in pursuance of the same principle, by the laws of Venice, where no personal tithes have been paid during the life of the party, they are paid at his death out of his merchandize, jewels, and other moveables (s). So also, by a similar policy, in France, every man that died without bequeathing a part of his estate to the church, which was called dying without confession, was formerly deprived of christian burial: or, if he died intestate, the relations of the deceased, jointly with the bishop, named proper arbitrators to determine what he ought to have given to the church, in case he had made a will. But the parliament, in 1409, redressed this grie vance (t).

It was anciently usual in this kingdom to bring the mortuary to church along with the corpse when it came to be buried; and thence (u) [*426] it is sometimes called a corse-present: a *term which bespeaks it

to have been once a voluntary donation. However in Bracton's time, so early as Henry III. we find it rivetted into an established custom: insomuch that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. "Imprimis autem debet quilibet, qui testamentum fecerit, dominum suum de meliori re quam habuerit recognoscere; et postea ecclesiam de alia meliori :" the lord must have the best good left him as an heriot, and the church the second best as a mortuary, But yet this custom was different in different places: “in quibusdam locis habet ecclesia melius animal de consuetudine; in quibusdam secundum vel tertium melius; et in quibusdam nihil: et ideo consideranda est consuetudo loci (w)." This custom still varies in different places, not only as the mortuary to be paid, but the person to whom it is payable. In Wales a mortuary or corse-present was due upon the death of every clergyman to the bishop of the diocese; till abolished, upon a recompense given to the bishop, by the stat. 12 Ann. st. 2. c. 6. And in the archdeaconry of Chester a custom also prevailed, that the bishop, who is also archdeacon, should have, at the death of every clergyman dying therein, his best horse or mare, bridle, saddle, and spurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best signet or ring (x). But by statute 28 Geo. II. c. 6. this mortuary is directed to cease, and the act has settled upon the bishop an equivalent in its room. The king's claim to many goods, on the death of all prelates in England, seems to be of the same nature: though sir Edward Coke (y) apprehends, that this is a duty due upon death and not a mortuary: a distinction which seems to be without a difference. For not only the king's ecclesiastical character, as supreme ordinary, but also the species of the goods claimed, which bear so near a resemblance to those in the archdeaconry of Chester, which was an acknowledged mortuary, puts the matter out of dispute. The king, according to the record vouched by sir Edward Coke, is entitled [427] to six things: the "bishop's best horse or palfrey, with his furniture; his cloak, or gown, and tippet; his cup and cover, bu

(q) Provinc. l. 1, tit. 3 (r) c. 13.

) Panormitan, ad Decretal. 1. 3, t. 20, c. 32.

4) Sp L. b. 28, c. 41,

(u) Selden, Hist. of Tithes, c. 10.

(e) Bracton, 1. 2. c. 26. Flet. 1. 2, c. 57

(z) Cro. Car. 237.

(y) 2 Inst. 491.

basin and ewer; his gold ring; and, lastly, his muta canum, his mew or kennel of hounds; as was mentioned in the preceding chapter (z).

This variety of customs, with regard to mortuaries, giving frequently a handle to exactions on the one side, and frauds or expensive litigations on the other; it was thought proper by statute 21 Hen. VIII. c. 6. to reduce them to some kind of certainty. For this purpose it is enacted, that all mortuaries or corse-presents to parsons of any parish, shall be taken in the following manner; unless where by custom less or none at all is due viz. for every person who does not leave goods to the value of ten marks, nothing for every person who leaves goods to the value of ten marks and under thirty pounds, 3s. 4d.; if above thirty pounds and under forty pounds, 6s. 8d.; if above forty pounds, of what value soever they may be, 10s. and no more. And no mortuary shall throughout the kingdom be paid for the death of any feme-covert; nor for any child; nor for any one of full age, that is not a housekeeper; nor for any wayfaring man, but such wayfaring man's mortuary shall be paid in the parish to which he belongs. And upon this statute stands the law of mortuaries to this day.

3. Heir-looms (5) are such goods and personal chattels, as, contrary to the nature of chattels, shall go by special custom to the heir along with the inheritance, and not to the executor of the last proprietor. The termination, loom, is of Saxon original; in which language it signifies a limb or member (a); so that an heir-loom is nothing else but a limb or member of the inheritance. They are generally such things as cannot be taken away without damaging or dismembering the freehold otherwise the general rule is, that no chattel interest whatsoever shall go to the heir notwithstanding it be expressly limited to a man and his heirs, but

(z) page 413.

(a) Spelm. Gloss. 277.

(Carr. v. Lord Errol, 14 Ves. 487. And Lord Hardwicke himself admitted, that, in the case of Gower v. Grosvenor, he went to the utmost allowable extent of construction, in favour of heir-looms. (Duke of Bridgwater v. Egerton, 2 Ves. sen. 122). But, where a personal chattel has been well limited as an heir loom, a bill in equity will hold for a specific delivery thereof to the party entitled to the possession. (Earl of Macclesfield v. Davis, 3 Ves. & Bea. 18). And clearly, where a testator gives specific articles, intending them to descend as heir-loomis, it is the duty of his executors to see that such intention takes effect, as far as lies in their power. Creditors may, indeed, by adopting compulsory measures, drive the executors off that ground; for, no testator can, in any way, exempt any part of his property from payment of his debts; but, execu tors are bound to preserve, as far as the law will permit thein, all articles which their testator intended to have treated as heir-looms. (Clarke v. The Earl of Ormonde, Jacob's Rep. 112, 114).

(5) A court of equity will never fetter personal property, by adjudging it to be held under a will, as an heir-loom, upon presumption; more especially in the case of a testator who, when such was his intention, knew how to express it. A claim which, in effect, attempts to restrain alienation, and permanently to give to personalty the character of annexation to realty, can only be enforced on clear proof; not by doubts on the construction of a will. (Saville v. Lord Scarborough, 1 Swanst. 546. Buon v. Cornforth, 2 Ves. sen. 280. Wythe v. Blackman, 1 Ves. sen. 202). Still, where a testator has directed that certain personal chattels shall go as heir-looms; though the limitation may not have been made in such terms as the law, in a strict sense, requires for settling heir-looms. Lord Hardwicke seems to have held, that a court of equity should be disposed to give effect to the clear intent, as far as it can be made consistent with the rules of law: (Gower v. Grosvenor, Barnard. 56, 63; S. C. 5 Mad. 338,349. Trafford v. Traf ford, 3 Atk. 349) and Lord Eldon is reported to have said, that heir-looms are a kind of pro- I seems that the journals of the House of perty which, like all specific bequests, are Lords, which are delivered gratuitously to rather favourites of the court of Chancery. each peer, are heir-looms, descend ag with the (Clarke v. The Earl of Ormonde, Jacob's Rep. title, and cannot be retained by a deceaseⱭ 115). However this may be, it is settled, that peer's personal representatives. Upton the absolute interest in chattels so given, vests Lord Ferrars, 5 Ves. 806). the first tenant in tail who comes in esse. VOL. I.

99

66

[*428] shall vest in the executor (b) (6). But deer in a real *authorized park, fishes in a pond, doves in a dovehouse, &c. though in themselves personal chattels, yet they are so annexed to and so necessary to the well-being of the inheritance, that they shall accompany the land wherever it vests, by either descent or purchase (c). For this reason also I apprehend it is, that the ancient jewels of the crown are held to be heirlooms (d); for they are necessary to maintain the state, and support the dignity, of the sovereign for the time being. Charters likewise (7), 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 (e). By special custom also, in some places, carriages, utensils, and other household implements, may be heir-looms (f); but such custom must be strictly proved. On the other hand, by almost general custom, whatever is strongly affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, "quod ab aedibus non facile revellitur (g)," is become a member of the inheritance, and shall thereupon pass to the heir; as chimney-pieces, pumps, old fixed or dormant tables, benches, and the like (h). A very similar notion to which prevails in the duchy of Brabant; where they rank certain things moveable among those of the immoveable kind, calling them by a very particular appellation, praedia volantia, or volatile estates; such as beds, tables, and other heavy implements of furniture, which (as an author of their own observes (" dignitatem istam nacta sunt, ut villis, sylvis, et aedibus, aliisque praediis, comparentur; quod solidiora mobilia ipsis aedibus ex destinatione patrisfamilias cohaerere videantur, et pro parte ipsarum aedium aestimentur (i).”

Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tombstone in a church, ["429] or the coat-armour of his ancestor there *hung up,' with the pennons and other ensigns of honour, suited to his degree. In this case albeit 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, but is liable to an action from the heir (k) (8). Pews (9) in the

(b) Co. Litt. 388.

(c) Ibid. 8.

(d) Ibid. 18.

(e) Bro. Abr. tit. chatteles, 18. (f) Co. Litt. 18. 185.

(6) Or if any chattel be given to a man and the heirs of his body, he takes the entire and absolute interest in it. There have been many fruitless attempts to make pictures, plate, books, and household furniture, descend to the heir with a family mansion. Where they are left to be enjoyed as heir-looms by the persons who shall respectively be in possession of a certain house, or to descend as heirlooms as far as courts of law and equity will admit, the absolute interest of them, subject to the life-interests of those who have lites tates in the real property, will vest in that person who is entitled to the first estate-tail or estate of inheritance, and upon his death that interest will pass to his personal representative. 1 Bro. 274. 3 Bro. 101. 1 Swanst. $37.

(7) In general the right to the custody of titie-deeds descends or passes with the estate

(g) Spelm. Gloss. 277.

(h) 12 Mod. 520.

(1) Stockman's de jure devolutionis, c. 3, ♦ 16, (k) 12 Rep. 105. Co. Litt. 18.

to the existing present owner, whether tenant for life or in fee, and he may retain or recover the deed from any other person. 4 Term. R. 229.

(8) 3 Bing. 138.

(9) The right to sit in a particular pew in a church arises either from prescription as appurtenant to a messuage, or from a faculty or grant from the ordinary, for he has the dispo sition of all pews which are not claimed by prescription. Gibs. Cod. 221. See generally as to the right to pews, 1 Phill. E. C. 316.

In an action upon the case at law for a dis turbance of the enjoyment of a pew in the body of the church, if the plaintiff claims it by prescription, he must state it in the declaration as appurtenant to a messuage in the parish. 5 B. & A. 356. But a pew in the aisle or chancel of the church may be prescribed for in respect of house aut of 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 and disturb it; and if any one in taking up a dead body steals the shroud or other apparel, it will be felony (m); for the property thereof remains in the executor, or whoever was at the charge of the funeral (10), (11).

But to return to heir-looms; these, though they be mere chattels, yet cannot be devised away from the heir by will; but such a devise is void (n), even by a tenant in fee-simple. For though the owner might during his life have sold or disposed of them, as he might of the timber of the estate, since as the inheritance was his own, he might mangle or dismember it as he pleased; yet they being at his death instantly vested in the heir, the devise (which is subsequent and not to take effect till after his death) shall be postponed to the custom, whereby they have already descended.

CHAPTER XXIX.

OF TITLE BY SUCCESSION, MARRIAGE, AND

JUDGMENT.

In the present chapter we shall take into consideration three other species of title to goods and chattels.

V. The fifth method therefore of gaining a property in chattels, either person or real, is by succession (1): which is, in strictness of law, only ap

(1) 3 Inst. 202. 12 Rep. 105.

(m) 3 Inst. 110. 12 Rep. 113. 1 Hal. P. C. 515. parish. Forrest. Rep. 14. 5 B. & A. 361. S. P. This prescription may be supported by an enjoyment for thirty-six years, and perhaps any time above twenty years. 1 T. R. 428. But where a pew was claimed as appurtenant to an ancient messuage, and it was proved that it had been so annexed for thirty years, but that it had no existence before that time, it was held this modern commencement defeated the prescriptive claim. 5 T. R. 296. In an action against the ordinary, the plaintiff must allege and prove repairs of the pew. Wils. 326. But a possessory right to a pew is sufficient to sustain a suit in the ecclesiastical court against a mere disturber. 1 Phill. E. C. 316. See further the cases and precedents, 2 Chitty on Pl. 817. Com. Dig. Action on Case for Disturbance, A. 5. 2 Saund. .75. c. d.

(10) It has been determined, that stealing dead bodies, though for the improvement of the science of anatomy, is an indictable of ace as a misdemeanor; it being considered

(n) 1 Co. Litt. 185

a practice contrary to common decency, and shocking to the general sentiments and feelings of mankind. 2 T. R. 733. 2 Leach, 560. S. C.

The principle is well described by Cicero ; de humatione unum tenendum est, contemnendam in nobis, non negligendam in nostris ; ita tamen mortuorum corpora nihil sentire intelligamus. Quantum autem consuetudini famæque dandum sit, id curent vivi. Cic. 1 Tusc. n. 108.

(11) In New-York, the title to churches is vested in the trustees of the church, and the pews are then generally leased or sold by them. In churches where the pews, are free to all, the title in them remains entirely in the trustees.

(1) As to corporations taking by succession, see Toller's L. Ex. b. 2. c. 4. s. 3; and as to churchwardens suing, see Bac. Ab. & Vin. Ab. tit. Churchwardens; and as to the over seer, &c. for the time being cuing on a bond, see 54 Geo. III. c. 170. s. 8. and treasurer of friendly society, 33 Geo. III. c. 54.