or on the day on which any rent was referved or made payable, upon any demife or leafe of any lands, tenements, or hereditaments, which determined on the death of fuch tenant for life, that the executors or adminiftrators of fuch tenant for life, fhall, in an action upon the cafe, recover of fuch tenant or under-tenants of fuch lands, tenements, or hereditaments; if fuch tenant for life die on the day on which the fame was made payable, the whole, or if before fuch day, then a proportion, of fuch rent, according to the time such tenant for life lived of the last year or quarter of a year, or other time in which the faid rent was growing due, making all juft allowances. To the end that a due regard be had to creditors, by the ftatute of the 22 & 23 Car. II. c. 10. called the statute of diftributions, as was mentioned in the fecond fection of the foregoing chapter; it is enacted, that no diftribution of the goods of any person dying inteftate be made, till after one year be fully expired after the inteftate's death. An adminiftrator, as well as an executor, is allowed, among debts of equal degree, to pay himself first, by retaining in his hands fo much as his debt amounts to. So if a perfon indebted to another makes his creditor or debtee executor, or if fuch creditor obtains letters of adminiftration to his debtor, in thefe cafes the law gives him a remedy for his debt, by allowing him to retain so much as will pay himself, before any other creditors whofe debts are of equal degree. This is a remedy by mere act of law, and grounded upon this reafon; that the executor cannot, without an apparent abfurdity, commence a fuit against himself, as reprefentative of the deceased, to recover that which is due to him in his own private capacity but having the whole personal estate in his hands, fo much as is fufficient to answer his own demand is, by operation of law, applied to that particular purpose. Elfe by being made executor he would be put in a worse condition than all the reft of the world befides; for, as he can commence no fuit, he must be paid the last of any, and of courfe muft lofe his debt in cafe the eftate of the teftator fhould prove infolvent, unless he be allowed to retain it. But But the executor fhall not retain his own debt, in prejudice to those of a higher degree; for the law only puts him in the fame fituation, as if he had sued himself as executor, and recovered his debt; which he never could be fupposed to have done, while debts of a higher nature fubfifted. Neither shall one executor be allowed to retain his own debt in prejudice to that of his co-executor in equal degree; but both shall be difcharged in proportion ".-The power the administrator has, in favouring and preferring creditors in the course of paying debts, will be feen hereafter; together with some other powers he has vefted in him ". SECTION THE SECON D. THE PARTICULARS OF WHAT THE ADMINISTRATOR IS INTERESTED IN, BY VIRTUE OF HIS ADMINISTRATION. H AVING fhewn, that the administrator, by virtue of his administration, hath intereft in all the chattels, real and perfonal, of the inteftate, and all the goods and chattels either in poffeffion or action; we come now to confider what these are in particular. CHATTELS Comprehend all goods, moveable and immoveable; except fuch as are in the nature of freehold or parcel of it; and this word by the common law extends to all moveable and immoveable goods. But eftates of inheritance, or freehold, cannot by the common law be w Black. Com. 3 V. 18. Pag. 53, 54, 56, 57, 58. y Pag. 43, 44• z Pag. 21. a For more particulars concerning eftates of inheritance, fee pag. 86. b Eftates of freehold are either of inheritance or not of inheritance, and thefe not of inheritance are but for life only. Eftates of freshold, not of inheritance, may be created by deed or grant; as where a leafe is made of lands or te nements to a man to hold for the term of his own life, or for that of any other perfon, or for more lives, than one: in any of which cafes he is filed tenant for life; only, when he holds the estate by the life of another, he is ufually called tenant pur auter vie. Black, Com. 2 V. 104. 120.-A leafe for 99 years, determinable upon a life or lives, is not a leafe for life to make a freehold; but a leafe for years, or chattel determinable upon life or lives, and an estate for 1000 years) is not a freehold, or of fo high a nature as an eftate for life. Co. Litt. 46. termed termed goods and chattels. Chattels are either personal or real. Perfonal, as household-stuff, goods and wares in a fhop; carts, ploughs, horfes, oxen, fheep, and the like: and thefe are called perfonal in two refpects; one because they belong immediately to the perfon of a man; the other, for that being any way injuriously with-held from him, he hath no other remedy to recover them but by personal action. Chattels-real, are fuch as either appertain, not immediately to the perfon, but to fome other thing by way of dependency; as a box with charters of land, or fuch as are iffuing out of fome immoveable thing; as a leafe, or rent for term of years and chattels-real concern the reality, lands and tenements, intereft in advowfons, in ftatutes merchant, and the like. But fishes in a pond, conies in a warren, deer in a park, pigeons in a dove-house, where the teftator or intestate had the inheritance, or but for life, in the pond, warren, park, and dove-house, are not chattels at all, nor go to the executor or adminiftrator; but to the heir with the inheritance: and therefore they are not to be put in the inventory of the goods and chattels of the party deceased. But if the teftator or inteftate have any tame pigeons, deer, rabbits, pheasants, or partridges, they fhall go to the executors or adminiftrators; and though they were not tame, yet if they were kept alive in any room, cage, or fuch like place: fo fifh in a trunk; alfo young pigeons, though not house, and not able to fly out. fpaniels, and the like, as they serve not only for delight, but for profit, fhall go to the executors or adminiftrators . And they fhall have all leafes for years, though they may be for 1000 years, and all lands extended on any judgment, ftatute, or recognizance, and all arrears of rent due at the death of the teftator or inteftate, the latter whereof being treated on in the preceding fection. And they fhall have all eftates pur auter vie, that tame, being in the doveAlfo hounds, greyhounds, may be valuable, and may is, eftates held during the life of another, as before mentioned. Thefe being diftributable by the ftatute of the 14 Geo. II. c. 20. fhall, where a man dies inteftate, and they were not made to him and his heirs, be distributed in the fame manner as his perfonal eftate; but it is otherwife if made to the inteftate and his heirs. For which fee more hereafter, p. 49. CORN fown will alfo go to the executor or administrator, and not to the heir, fo alfo will hops, though not fown, if planted, and faffron and hemp". This being what is usually ftiled emblements, the doctrine of which extends not only to corn fown, but to roots planted, or other annual artificial profit, as clover, faint-foin, and the like, which was fown by the deceased *. But it is otherwife of fruittrees, grafs, and the like; which are not planted annually at the expence and labour of the tenant, but are either the permanent or natural profit of the earth'. So these latter go to the heir, and not to the executor or adminiftrator. And Mr. Wentworth thinks, that roots in gardens, as carrots, parfnips, turnips, fkirrets, and fuch like (which he fays may be of value in gardens about London, and some great towns), fhall not go to the executor, but to the heir; because they cannot be taken without digging and breaking the foil". But it seems very clear by Lord Coke", and Sir William Blackftone, that these fhall go to the executor or adminiftrator; and not to the heir. IF a man feised for life, or in fee, or tail, in his own right, or in the right of his wife, and fows the ground with corn, but dies before it is ripe, his executors or adminiftrators fhall have it, and not the wife or heir: but grafs ready to be cut for hay, apples, pears, and other fruit on the trees, shall not go to the executors or adminiftrators. And the reason of the dif h Burn's Ecclef. Law, 242. 4 1 Black. Com. 2 V. 123. k Burn's Ecclef. Law, 242. 4 1 Black. Com. 2 V. 123. m Went. Off. Exec. 62. n Co. Litt. 55. • Com. 2 V. 122. ference ference is, because the former comes not merely from the foil, without the induftry or manurance of man, as the latter doth. And if the wife had a leafe for years, as executrix, and the husband fows the ground with corn, and dies before it is ripe, the corn fhall go to his executors or adminiftrators, or at least, so much as is more than the yearly rent of the land: but if the husband and wife were joint-tenants of the land, the fhall have the corn and not his executors P. if a parfon fows his glebe land, and dies before severance, and after his fucceffor is admitted, instituted, and inducted, before the corn is cut, it fhall go to the executors or adminiftrators of the deceased, who must pay tithes thereof to the fucceffor 1. And THINGS that are affixed to the tenement, and are made parcel of the freehold, belong to the heir, and not to the executor or adminiftrator; as the glafs annexed to the windows of the house, which is parcel of the house, and fhall defcend as parcel of the inheritance to the heir, and the executors or administrators shall not have it. And although the leffee himself, at his own coft, caufe the glass to be put into the windows, yet, the fame being parcel of the houfe, he cannot take it away afterwards, without danger of punishment for wafte. Neither is there any material difference in law, whether the glafs was annexed to the window with nails, or in any other manner, either by the lord or by the tenant; for being once affixed to the freehold, the fame cannot be removed by the leffee, but fhall belong to the heir, and not to the executors or adminiftrators. So in refpect of wainscot, this being annexed unto the house, either by the leffor or by the leffee, is parcel of the house. And there is no difference whether it be affixed with great nails or little nails, or by fcrews or irons thrust through the pofts or walls of the house; for howfoever it be affixed, either in manner p Law of Teft. 342. • Swinb. 421. ૧ 4 Burn's Ecclef, Law, 243, aforefaid, |