d'eyncourt v gregory

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(1866-67) L.R. 3 Eq. 382 Page 1(1866-67) L.R. 3 Eq. 382 (1866-67) L.R. 3 Eq. 382 (Cite as: (1866-67) L.R. 3 Eq. 382)

D'eyncourt v Gregory (No.1)

Equity

Lord Romilly M.R.

1866 Nov. 21; Dec. 7

Tenant for Life and Remainderman—Will—Heir—looms—Fixtures—Tapestry—Pictures in Panels—Statues.

A testator, who was tenant for life of settled estates, on which he had erected, fitted up, and furnished a mansion-house (an old one having fallen into decay), bequeathed all the tapestry, marbles, statues, pictures with their frames and glasses, which should be in or about the house at the time of his death, and of which he had power to dispose, to be enjoyed as heir-looms by the persons who, under the limitations in his will, would be entitled to his own estates thereby devised in strict settlement, being the same as those entitled to the settled estates, subject to a condition, with a shifting clause in case the condition were not ful-filled. After the testator's death, A. became tenant for life of both the settled and devised estates, and on his death the settled estates devolved on B.; but (as the condition was not fulfilled) C. became entitled to the devised estates and to the heir-looms under the shift-ing clause in the testator's will. The question arose, as between B. and C., which of the articles passed under the will:—

that tapestry, pictures in panels, frames filled with satin, and attached to the walls, and also statues, fig-ures, vases, and stone garden-seats, purchased and placed by the testator, which were essentially part of the house, or of the architectural design of the build-ing or grounds, however fastened, were fixtures, and could not be removed; but that glasses and pictures not in panels, not being part of the building, passed under the testator's will:

also, that articles purchased by the testator, but fixed by A. after his death, were not fixtures, and passed

under the will to C.

GREGORY GREGORY, the testator in the cause, was tenant for life of the estates devised by the will of George De Ligne Gregory, on which there was an old manor-house which had not been inhabited for many years. This house was suffered to fall into decay, and the testator erected on the estate, on another site, a new capital mansion-house, called Harlaxton Manor House, which he fitted up and furnished at great cost, and resided there till the time of his death. The testa-tor was also owner in fee of certain other estates.

The testator, by his will, dated the 22nd of Novem-ber, 1848, devised all his own fee simple estates, in strict settlement, to the families entitled to the settled estates under the settlor's will; and he bequeathed to the trustees of his will “all the furniture and linen, ta-pestry, buhl, marbles, statues, bronzes, ormolu, orna-mental *383 china and alabasters, plate and plated ar-ticles, books, pamphlets, pictures, prints, and draw-ings, with their frames and glasses, which should be in or about the said manor-house at the time of his death, and of which he had power to dispose;” and di-rected that the trustees should stand possessed thereof upon trust and to the intent that the same might be at-tached to the testator's manors and estates before de-vised, and might go, and be held and enjoyed there-with, as, or in the nature of heir-looms, by the person or persons who should by virtue of his will be enti-tled to the possession of the same estates, and for such and the like estates as long as the nature of the property and the rules of law and equity would per-mit. The testator directed that if any of the persons thereby made tenants for life, or any issue of such persons should, under the will of George De Ligne Gregory, become entitled to an estate tail in posses-sion in the hereditaments by the last-mentioned will devised, then the person so becoming entitled should, within twelve months after attaining the age of twenty-one, resettle all the hereditaments devised by the will of George De Ligne Gregory, so that the same might be held to the same uses and upon the same trusts as were by his (the testator's) will de-clared concerning the hereditaments and chattels therein comprised: and in case any person so entitled should not within twelve months make such resettle-

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ment as before required, then and in such case all the hereditaments thereby devised, and the articles thereby made heir-looms, should thenceforth go and remain to such uses, and upon and for such trusts and purposes, as the same would have gone and been held if they had not been limited to the person or persons so neglecting or refusing to make such resettlement.

The testator died in 1854, and on his death George Gregory became tenant for life of the devised estates under his will, and also of the settled estates under the will of George De Ligne Gregory.

In 1860, George Gregory died, and John Sherwin Gregory became tenant for life under the will of the testator, Gregory Gregory, and tenant in tail in pos-session under the will of George De Ligne Gregory.

In February, 1861, John Sherwin Gregory executed a deed-poll, whereby he declared that he elected not to settle, and that he refused to settle the hereditaments, heir-looms, and other premises *384 devised and be-queathed by the will of George De Ligne Gregory in manner required by the acts of the testator, Gregory Gregory, and thus renounced and disclaimed all de-vises and bequests given to him by the will of the tes-tator, Gregory Gregory.

On the execution of this deed-poll, the shifting clause in the testator's will took effect in favour of Sir Glynne Gregory as the next person entitled under the limitations contained in the will.

The greater part of the heir-looms bequeathed by the testator's will were placed in the house by the testator while tenant for life of the settled estates, and some of them were placed there after the testator's decease by George Gregory.

The suit was instituted by the surviving trustee of the testator against John Sherwin Gregory, Sir Glynne Gregory, and others, as Defendants, to obtain the declaration of the Court as to the rights of all parties under the said will, and (among other things) to the heir-looms before mentioned.

The articles on which the principal questions arose, as between the Defendant, Sir Glynne Gregory, who

claimed them under the will of the testator, and the Defendant, John Sherwin Gregory, who, as tenant in tail of the settled estates, including Harlaxton Manor House, claimed these articles as fixtures, were, so far as is material for the present report, the tapestry in the gallery and another room in the mansion-house put up by the testator; certain pictures fixed by the testa-tor in panels; gilt frames in the walls filled with satin; chimney-glasses; certain kneeling figures and marble vases in the hall of the mansion; stone figures of lions at the head of a flight of steps, and sixteen ornamen-tal stone seats in the garden. There ware also tapes-tries and other articles purchased by the testator and fixed by George Gregory after his decease, and some which were both purchased and fixed by George Gre-gory.

By an order made in the cause on the Petition of the Defendant, Sir Glynne Gregory, the following in-quiries were directed:—

First: whether any, and which, of the furniture, tapes-try, marble, &c. (therein mentioned), were affixed or fastened to the mansion-house, or its appurtenances, by Gregory Gregory, and in what manner, and when, and under what circumstances. Secondly: an inquiry whether any, and which, of the said articles were so fixed or fastened *385 by George Gregory, and when, and in what manner, and under what circum-stances.

The Chief Clerk made a certificate answering these inquiries, and shewing how the articles in question were situated. Those respecting which no question could arise were delivered up, and the case now came before the Court on further hearing with respect to other articles, including those before mentioned.

Evidence was adduced on both sides, and the affi-davit of A. Johnston, a carver and decorator, given on behalf of Sir Glynne Gregory, which was referred to in the judgment, contained the following description of the principal articles in question:—

“The portrait in oil of Lady Williams in the great hall on canvas and stretcher appears to be screwed by nails or screws to blocks or plugs of wood inserted in the brickwork of the room: a wood moulding is



placed upon the front of the picture, one portion of such wood moulding being next the picture, and the other flush with the wainscoting of the room, and such wood moulding is attached by screws or nails to wood plugs in the wall; a wood frame is placed over such moulding, and attached thereto and to the wain-scoting of the room by screws or nails: the screws, or nail heads, have afterwards been stopped and gilded with the frame. This painting and gilt frame can be removed easily, and without damage, and if the paint-ing were removed and the framework filled in with figured satin, in the same manner as are all the other panels in this room, it would be a counterpart of them, the moulding round the painting being exactly similar to those which are round the satin lined pan-els.

“The tapestries” (giving a description) “are each on wood stretchers attached by screws or nails to blocks or plugs of wood inserted in the brick wall in a simi-lar manner to that described with regard to the por-trait, this being the usual and common method of se-curing glasses, pictures, tapestries, &c., where the walls are recessed; painted wood mouldings have then been placed round the face of such tapestry flush with the wood wainscoting or panelling of the room, and the nails or screws have been afterwards stopped in and painted over these mouldings, and the tapes-tries can be very easily removed, and the mouldings replaced, if required, without material damage to the walls or panelling of the *386 room. The room has enriched panels in the style of Louis Quatorze, painted blue and white, and if the panels from which it is desired to remove the tapestries were ornamented in the same style, it would make a perfectly complete apartment, as far as these walls are concerned.

“The chimney-glass in an ornamental white and gilt frame, and an oil-painting surmounting it, are placed against the flush face of the wall, and attached with nails or screws as an ordinary looking-glass would be fixed, and can be easily taken down. This glass frame and picture frame are made of wood ornamented with plaster or composition enrichments, and bear no evi-dence of being attached to the wall but by screws or nails.

“The carved and gilt frames, filled with white satin, occupy the side of a room, and are placed against the

flush face of the wall, and attached to it with nails or screws, and may be removed with ease without dam-age.

“The three carved kneeling figures in the great hall are placed upon three pedestals forming parts of the cedar staircase. They are formed of cedar, and are hollow, and the figures, where attached to them, are hollow, and are so attached by a few screws only. The figures were evidently not designed to rest upon the particular pedestals which they now occupy, as the plynths of the figures and the tops of the pedestals do not accord in their proportions. The figures could easily be lifted off the pedestals without damage.

“The sculptured marble vases” (in the hall) “have the appearance of resting upon massive cedar pedestals, but upon close inspection the cedar work is merely a casing built round the real supports or piers upon which the vases stand, which, being of great weight, rest upon piers, probably of brickwork, the cedar cas-ing being cut, and fitted round the bases of the vases. The great weight of these vases renders the use of mortar, cement, or other material, wholly unneces-sary for the purpose of attaching them to the pedestals, and the same are not fixed or fastened in any manner save by a beading of cedar wood, and could be lifted off the pedestals without damage to the freehold, and the pedestals would only require new tops to render them fit to receive any other ob-jects that might be placed on them.

“The pair of lions three feet high” (at the head of the flight of *387 steps in the garden) “are of sculptured marble, and of very great weight, and are simply rest-ing on stone pieces or pillars, and have no appearance of being attached, which would be unnecessary, their own weight being sufficient to prevent their being displaced, and I believe the said lions can easily be lifted off, with proper appliances, without damage to the said stone piers.

“The stone garden-seats are stone marble slabs of great weight, each resting on three stone supports or uprights sunk a short distance through the earth, but the seats or slabs do not appear to be in any manner fixed or attached to their said supports, but are re-tained in their proper position solely by their own great weight, and can easily be lifted off the supports



without any damage to them or the supports.”

Sir Roundell Palmer, Q.C., and Mr. Jessel, Q.C., for the Petitioner, Sir Glynne Gregory:—

The object of the testator, who had built the new mansion-house on the estate of which he was tenant for life, and had fitted it up in a very costly way, was this—that all the articles which he had purchased as fittings and ornaments of the house, should go as heir-looms with his own estates in strict settlement. John Sherwin Gregory, who was tenant for life of the settled estates, and also of the estates devised by the will, elected not to resettle the property, and conse-quently the clause of forfeiture took effect in favour of the Petitioner, who thus became tenant for life of the devised estates and of the heir-looms, so far as they could lawfully pass under the testator's will. The question is, what articles are not fixtures, and, there-fore, pass under the gift in the will? We contend that they are those articles which were not de facto fas-tened to the freehold, and those which can be sepa-rated from it.

With respect to the right of the executor of a tenant for life, as against the remainderman, to fixtures set up for ornament or convenience, it is stated in Williams on Executors, that though “not a single case is to be found in the books relating expressly to this subject, nevertheless, upon the ground that the law is more favourable in this respect to the executor of ten-ant for life, than to the executor of tenant in fee, it is clear à fortiori, that all cases *388 which support the right of the latter to hangings, pier-glasses, tapestry, pictures, &c., are express authorities in favour of the right of the former.” The authorities shew that, where chattels of that kind can be removed without material injury, then the right of the executor of the tenant for life will prevail as against the heir of the tenant in fee. As between a tenant for life and remainderman, you cannot presume an intention on the part of a ten-ant for life to dedicate such chattels for the benefit of the inheritance where he has given them by his will, and they are separable from the freehold without oc-casioning special damage. Where a tenant for life puts up furniture or ornaments, and does not deal with his interest wrongfully, he cannot be taken to have been acting for the benefit of the estate. Ques-tions of this kind, with regard to trade fixtures, are

considered in Amos on Fixtures. In Lawton v. Law-ton, where a fire-engine (a steam-engine) erected in a colliery by a tenant for life, was held to be person-alty, and to go as assets to his executor, and not to the remainderman as part of his real estate, Lord Hard-wicke observed: “This is not a case between an ances-tor and heir, but an intermediate case between a ten-ant for life and remainderman;” and added, “In the reason of the thing, the situation of the tenant for life comes near to that of a common tenant, where the good of the public is the material consideration … These reasons of public benefit and convenience weigh greatly with me, and are a principal ingredient in my present opinion.” Though the element of trade entered into that case, yet similar principles apply here, for it is advantageous for property generally that a tenant for life should furnish his house, and not be discouraged by the possibility of the whole benefit going to the remainderman. Lord Dudley v. Lord Warde was a similar case, and governed by the same principles. On the question of fixtures for orna-ment, “the articles which an executor of a tenant in fee has been held entitled to take as part of his per-sonal estate, consist merely of hangings, glasses, and tapestry nailed to the walls of a house, furnaces, grates, iron backs to chimneys, and such like. These instances, therefore, establish an indulgence extend-ing to things which subsist as complete chattels in themselves, *389 and which, having been put up as mere ornamental furniture, or for temporary domestic convenience, are not united to the fabric of the house by any permanent or substantial annexation,” Amos on Fixtures. In Squier v. Mayer , it was held that hangings nailed to the wall belonged to the executor, and not to the heir. But in the subsequent case of Cave v. Cave , pictures put up instead of wainscot, were held to go to the heir, and not to the executor. Later cases, however, rather agree with Squier v. Mayer, than with Cave v. Cave. Thus in Harvey v. Harvey , a case recognised by Mr. Justice Buller, in his Law of Nisi Prius, hangings and tapestry were held to belong to an executor, who recovered accord-ingly against the heir.

Applying these principles to the tapestry, and to the pictures in panels, we submit that they are not fix-tures, and pass under the testator's will. The old cases between the executor and the heir, where the Court leans in favour of the heir, have no application to


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questions between a tenant for life, who is absolute owner of the chattels, and a remainderman. The ta-pestry was never a part of the house, and a picture, whether painted on canvas or not, is not a fixture be-cause it is placed in a panel. There is no authority for saying that they belong to the remainderman, and as the tenant for life could not have been restrained by this Court from removing them in his lifetime, he can dispose of them by his will. The same observations apply to the frames filled with satin, and to the glasses, which are shewn by the evidence to be easily removable.

The marble vases, the kneeling figures, the lions, and the stone garden seats, all stand by their own weight, and cannot be said to be fixtures. In Hutchinson v. Kay , it was held that looms in a mill which were not fixed, but steadied by iron legs let into the floor, were not fixtures, and that they consequently did not pass under a mortgage of the mill and machinery belong-ing to it.

Mr. Field, Q.C., and Mr. Welby, for other Defendants in the same interest as the Petitioner:—

The marble vases, and garden-seats which simply rest by their *390 own weight, are not fixtures, and even if cement is used, that cannot alter their character. In Horn v. Baker , on a question of what articles in a distillery were in the order or disposition of a bank-rupt, vats standing on the surface were held to pass to the assignees. So in Mather v. Fraser , articles stand-ing merely by their own weight did not pass as fix-tures in the mortgage of a manufactory.

In Davis v. Jones , where parts of a machine had been put up by a tenant, and were capable of being re-moved without injury to the rest of the machine, or to the building, they were held to belong to him on the expiration of his term. The older cases on this subject were decided at a time when, through the influence of the feudal laws, much greater respect was paid to real than to personal property. The later cases have modi-fied the old maxim, Quicquid plantatur solo solo cedit. As between landlord and tenant such articles would, at the close of the demise, belong to the ten-ant: Elliott v. Bishop (in error, Bishop v. Elliott .) In Wiltshear v. Cottrell a granary, resting by its own weight on staddles built into the land, was held not to

be a fixture. This case applies to the garden seats, which rest on the ground by their own weight.

The articles belonging to the testator, and fixed by George Gregory after his decease, likewise pass un-der the will.

Mr. J. Hinde Palmer, Q.C., and Mr. W. Knox Wigram, for the Plaintiff.

Mr. Mellish, Q.C., Mr. Selwyn, Q.C., and Mr. J. L. Bird, for John Sherwin Gregory, the tenant in tail of the settled estates:—

The case has been argued as if it were an ordinary question between a tenant for life and remainderman as to the right to fixtures. But the case is wholly dif-ferent. There was on this estate an old manor-house, in place of which the testator erected on the estate a house on another site, on a much larger scale, and al-lowed the old house, for which he was impeachable for waste, to *391 go to ruin. The new house, with everything in it, must be taken to be in substitution for the old one; and Sir Glynne Gregory has no more right under the testator's will to remove fixtures from the new house than he would have had to remove them from the old house if it had been standing. When a tenant for life builds a house in substitution for another, the articles of furniture or ornament placed in it are not to be regarded in the same light as these which are placed by a tenant for life in a house in addition to those already there. Where a tenant for life, or tenant for years, brings in his own ornamental fixtures, which can be removed leaving the house substantially the same as before, then undoubtedly they belong to him. But supposing there were in this case any tapestry which had descended to the tenant for life, as part of the inheritance, and he chose to re-move it, and to substitute other tapestry much more valuable, then he would have no right to remove it, as it would be presumed that he intended it in substitu-tion for that which was part of the inheritance. In like manner the whole of the new manor-house, with ev-erything it contains, must be taken to be in substitu-tion for the former one.

As to the articles themselves, the lions, the vases, and the stone garden-seats, formed part of the original de-



sign of the house, and are therefore irremovable. Those articles which, however fixed, formed part of the building, belong to the same class. The words of the will expressly point to articles in or about the manor-house, or personal chattels. Under these words nothing would pass which was part of the building, or in any way fixed to it, even though it were of such a character as an ordinary tenant for life would be enti-tled to remove. The tapestry fixed by the testator was so fastened as to be properly a part of the room, and he cannot be assumed to have intended to leave the room in an uninhabitable state by its removal.

In such cases it is always necessary to inquire in what position the tenant for life who placed the articles stood to those entitled in remainder. If his position were such that he evidently intended the things to re-main there, and the remainderman would be injured by the removal, then the Court will presume an inten-tion that they were not to be removed. In Wood v. Hewitt , *392 where the question was, whether a chattel placed by the owner upon the property of an-other, but severable from it, had become part of the freehold, Lord Denman observed that the case of Mant v. Collins , there cited, might be taken to be law to this extent, that it must be matter of evidence how such a thing came where it was, and whether it be-longed to the freeholder or not.

As regards the articles purchased by the testator, but fixed by George Gregory so as to become part of the house, although there may be a right of action against the estate of George Gregory, they cannot be re-moved by the Petitioner. In Brooke's Abridgment, as cited in Amos on Fixtures, it is laid down that, “If a piece of timber which was illegally taken from J. S. has been hewed, trespass does not lie against J. S. for retaking it. But if a piece of timber which was ille-gally taken have been used in building or repairing, this, although it is known to be the piece which was taken, cannot be retaken, the nature of the timber be-ing changed, for by annexing it to the freehold it be-comes real property.” There were other articles pur-chased by George Gregory and fixed by him: as to these, he must be presumed to have dedicated them to the house.

Mr. Jessel, in reply:—

There is no evidence in this case that the new manor-house was built in substitution for the old one which had fallen into decay before the testator became ten-ant for life. As regards the tapestry it is expressly in-cluded in the will; as regards the other articles, the presumption is against dedication by the testator for the benefit of the estate. According to Paton v. Shep-pard , they would pass by the will under the word “furniture.”Dec. 7. LORD ROMILLY, M.R.:—

The question which arises upon this Petition is, what were the articles which the testator could dispose of. The case arises thus:—

The testator, Mr. Gregory Gregory, who died in June, 1854, was *393 the tenant for life of certain estates, under the will of George De Ligne Gregory, and was also tenant in fee simple of certain other estates. He then made his will, by which he devised his fee sim-ple estates in strict settlement to the same persons as those to whom the settled property would pass; and he gave to his trustees by enumeration all the articles he had the power to dispose of, and which he desired might go as heir-looms with the property, as far as the rules of law and equity would permit. He then in-serted a shifting clause, providing that if any tenant in tail in possession of the estates taken under the will of George De Ligne Gregory (which I call the settled estates) should not, within twelve months after be-coming so entitled, re-settle those estates, and all the property and heir-looms derived under the will of George De Ligne Gregory, in such a manner as to go according to the limitations of the estates comprised in the will of Gregory Gregory (which I call the de-vised estates), then the devised estates, and all the ar-ticles thereby made heir-looms, were to go in the same manner as if the limitations in favour of the per-son neglecting or refusing to make such settlement had not been inserted in his will.

Upon the death of Gregory Gregory, George Gre-gory became the tenant for life of both the settled and the devised estates. He died in 1860. Upon his death, the Defendant, John Sherwin Gregory, became the tenant for life of the devised estate under the will of Gregory Gregory, and tenant in tail male in posses-sion of the settled estates under the will of George De Ligne Gregory. In February, 1861, John Sherwin Gregory, by deed-poll, declared his intention not to



comply with the directions contained in the will of Gregory Gregory for the re-settlement of the settled estates, and accordingly the shifting clause took ef-fect in favour of the Defendant Sir Glynne Gregory, and thereupon the question arose, what were the arti-cles contained in the gift of heir-looms in the will of Gregory Gregory which he had power to dispose of?

The testator had built, on a large and magnificent scale, the manor-house of Harlaxton, in Lincolnshire, and had partially furnished it. The words of the be-quest are these:—[His Lordship then read the words of gift of the heir-looms.]

In the first place, I think it is obvious that the testator, by the shifting clause, meant to coerce as powerfully as he could the *394 tenant in tail in possession of the settled estates, and to induce him to re-settle those es-tates, and, in the event of his refusing to do so, the testator intended to take away from him every article of property he could. To determine what those arti-cles are, this suit was instituted. [His Lordship then referred to the order, and the inquiries thereby di-rected, and the Chief Clerk's certificate.]

The principal question is, which of the articles more or less closely attached to the house are removable, and which are not removable; and with respect to them, I have felt, and do feel, very considerable diffi-culty. I cannot adopt the specious and ingenious argu-ment of Mr. Mellish, that as Gregory Gregory was tenant for life, impeachable for waste, and has al-lowed the old house to fall down, he must be held to have substituted the new house for the old one, with everything that there was in it, and all its attributes, whether movable or immovable. Assuming that the heir in tail could have obtained an injunction to re-strain Gregory Gregory from committing permissive waste by allowing the old house to fall into decay, it is clear that the substitution of a new house in another place would be no answer to any such injunction, and it is also clear that no such exchange as that of one house for another could be made so as to bind per-sons in succession. Still less could any such exchange be implied, nor, if implied, could it extend to the arti-cles which personally belonged to Gregory Gregory, and which he would have power to dispose of as he pleased. I must also disregard all the additions made by the next tenant for life, George Gregory, who has

affixed to the freehold several articles belonging to and left by Gregory Gregory. All the articles, such as tapestry, marbles, and the like, which belonged to Gregory Gregory, and which remained detached at his death, were part of his personal chattels, and the next tenant for life could not, by attaching them to the freehold, even although on his death he was carrying into effect the wishes and intentions of Gregory Gre-gory, diminish or qualify the effect of the shifting clause, or turn mere loose personal chattels belonging to Gregory Gregory into fixtures inseparably at-tached to the freehold, and thereby prejudice his suc-cessors, or affect their rights.

It is not, therefore, on any or either of these two points that *395 I have felt any difficulty, but what I have felt embarrassed by is the more or less of con-nection (using that word in its extended sense) with the freehold, and with the house and grounds, which is to be observed in the articles which were affixed by Gregory Gregory himself.

The first of these which I think proper to mention is the tapestry which was put up by the testator, Gre-gory Gregory, himself. It is clear that the testator could not have disposed of paper affixed to the walls, nor, if he had used silk instead of paper for lining the walls, could he, in my opinion, have removed the silk. So, if the testator had covered the walls of the house with panelling, he could not, in my opinion, have removed the panelling, and have left the walls bare. If he caused them to be painted in fresco, he could not have removed the paintings, and I think if he had caused the panels to be painted he could not have removed the painting any more than if he had put in panels already painted, and fixed them close to the wall. In all these cases I think they must be con-sidered to be fixtures not removable by the tenant for life.

Upon considering the case of the tapestries already fixed at the death of Gregory Gregory, I have come to the conclusion that these fall within the description of such matters as those I have just enumerated, and that they could not be removed; in other words, that the testator himself could not have been allowed to remove them. [His Lordship then read from John-ston's affidavit the description of the mode in which the tapestries were fastened.] Although this is not as



complete as if the tapestries were actually affixed to and inseparable from the walls themselves, which, I apprehend, is never done, still I think they must be treated as part of the wall itself, and by so placing them Mr. Gregory Gregory deprived himself of the power of removing them. In the same class with these tapestries is the portrait of Lady Williams. [His Lord-ship then read the description.] The observation that “the painting and gilt frame may be removed easily and without damage, and if the painting were re-moved, and the framework were filled in with figured satin in the same manner as all the other panels in the room,” is, in my opinion, very pregnant. Both the painting and the tapestries could be removed unques-tionably in this sense, that they could be taken down, and the space left or filled with satin, and *396 so likewise the satin in the frames could be taken down, and the gaps replaced by paper, in the same manner as the tapestry might be replaced with satin; whereas the paper, being stuck close to the wall, could not be removed: but, in my opinion, in all these cases, whether it is the paper, or the satin, or the panels, or the tapestry, they are all part of the wall itself, and they are fixtures not to be removed. In all these cases the question is not whether the thing itself is easily removable, but whether it is essentially a part of the building itself from which it is proposed to remove it, as in the familiar instance of the grinding-stone of a flour-mill, which is easily removable, but which is nevertheless a part of the mill itself, and goes to the heir, and not to the legal personal representative. The chimney-glass, and the ornamental frame, and the oil-painting surmounting it, appear to me to be no part of the house itself, or of the wall itself, but to be merely ornaments attached to it which the testator might have removed. The carved and gilt frames filled with blue and white satin, as I understand the evidence, fall exactly in the same category as the tapestry, and are, in fact, instead of what is usually paper, a cover-ing of the walls, and form part of the walls them-selves.

With respect to the carved kneeling figures on the staircase in the great hall, and the sculptured marble vases in the hall, they appear to me to come within the category of articles that cannot be removed. I think it does not depend on whether any cement is used for fixing these articles, or whether they rest by their own weight, but upon this—whether they are

strictly and properly part of the architectural design for the hall and staircase itself, and put in there as such, as distinguished from mere ornaments to be af-terwards added. There may be mansions in England on which statues may be placed in order to complete the architectural design as distinguished from mere ornament; and when they are so placed, as, for in-stance, they are in the cathedral of Milan, I should consider that they could not properly be removed, al-though they were fixed without cement or without brackets, and stand by their own weight alone. In such a case they resemble the stone of a mill, which is part of the mill itself, and goes to the heir-at-law. I admit that the distinction between such statues as are added by way of ornament, and such as belong to *397 an architectural design, and form part of the de-sign itself, is extremely thin, and that in many cases it would be difficult to distinguish them, unless it were done in an arbitrary manner, so closely might one run into the other. But I am unable to suggest any other mode by which the true construction can be defined more accurately than that which I have already stated. Accordingly evidence must in every case determine whether the article falls within or without the line. In the present case I have thought the articles which I have mentioned are not removable, relying upon the evidence given and the drawings laid before me. The same rule will apply to the lions at the head of the flight of steps in the garden, and the sixteen stone garden-seats in the garden itself. These, in my opin-ion, must go with the estate, and are not separable as mere loose personal chattels.

Unquestionably, in coming to these conclusions, I have not done so with any degree of confidence, or even of complete satisfaction to myself. The evi-dence, minute and clear as it is, cannot give the same effect that a personal examination might do; but even on a personal examination I should doubt whether I could come to a more accurate conclusion. The best conclusion I can come to with regard to the articles I have enumerated, is, that they seem to me to belong to the freehold, and to be inseparable from it. All the rest are, in my opinion, removable, and belong to the personal estate. I repeat that George Gregory could not convert the chattels of the testator into fixtures; and the tapestry belonging to the testator which he has attached to it must be removed, and restored to the personal estate of Gregory Gregory. Having



come to this conclusion, I consider myself bound to hold that Gregory Gregory meant, in the event of the refusal to re-settle, which has occurred, to give away from John Sherwin Gregory every part of the furni-ture or fixtures which the law would allow him to dispose of.END OF DOCUMENT
