Westlaw Delivery Summary Report for FULLER,DONIA JOE

Date/Time of Request: Monday, October 4, 2010 14:34 Caracas, La Paz

Client Identifier: DONIA FULLER
Database: LAW-RPTS
Citation Text: (1866-67) L.R. 3 Eq. 382
Lines: 613
Documents: 1
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(1866-67) L.R. 3 Eq. 382
(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
fulfilled. 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
shifting 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,
figures, 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
building 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
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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
testator was also owner in fee of certain other estates.
The testator, by his will, dated the 22nd of
November, 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, tapestry, buhl, marbles, statues, bronzes,
ormolu, ornamental *383 china and alabasters, plate
and plated articles, books, pamphlets, pictures, prints,
and drawings, 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 directed that the trustees should stand
possessed thereof upon trust and to the intent that the
same might be attached to the testator's manors and
estates before devised, and might go, and be held and
enjoyed therewith, as, or in the nature of heir-looms,
by the person or persons who should by virtue of his
will be entitled 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
permit. 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
possession 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
declared concerning the hereditaments and chattels
therein comprised: and in case any person so entitled
should not within twelve months make such
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resettlement 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
possession 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
bequeathed 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 devises and bequests given to him by the will of
the testator, 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,
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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
testator 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
ornamental stone seats in the garden. There ware also
tapestries 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 Gregory.
By an order made in the cause on the Petition of the
Defendant, Sir Glynne Gregory, the following
inquiries were directed:—
First: whether any, and which, of the furniture,
tapestry, 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 circumstances.
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
affidavit 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
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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
wainscoting 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 painting 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 panels.
“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
similar manner to that described with regard to the
portrait, this being the usual and common method of
securing 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
tapestries 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
evidence of being attached to the wall but by screws
or nails.
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“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
damage.
“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
casing 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
unnecessary 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
objects 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
resting 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
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retained 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
consequently 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, therefore, pass under the gift in the will? We
contend that they are those articles which were not de
facto fastened to the freehold, and those which can be
separated 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
tenant 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 tenant 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 occasioning special damage. Where
a tenant for life puts up furniture or ornaments, and
does not deal with his interest wrongfully, he cannot
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be taken to have been acting for the benefit of the
estate. Questions of this kind, with regard to trade
fixtures, are considered in Amos on Fixtures. In
Lawton v. Lawton, where a fire-engine (a steam-
engine) erected in a colliery by a tenant for life, was
held to be personalty, and to go as assets to his
executor, and not to the remainderman as part of his
real estate, Lord Hardwicke observed: “This is not a
case between an ancestor and heir, but an
intermediate case between a tenant 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 ornament, “the articles
which an executor of a tenant in fee has been held
entitled to take as part of his personal 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 extending 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
accordingly against the heir.
Applying these principles to the tapestry, and to the
pictures in panels, we submit that they are not
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fixtures, 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 questions between a tenant for life, who is absolute
owner of the chattels, and a remainderman. The
tapestry was never a part of the house, and a picture,
whether painted on canvas or not, is not a fixture
because 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
belonging 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
bankrupt, vats standing on the surface were held to
pass to the assignees. So in Mather v. Fraser , articles
standing merely by their own weight did not pass as
fixtures 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
removed 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 modified the old maxim, Quicquid
plantatur solo solo cedit. As between landlord and
tenant such articles would, at the close of the demise,
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belong to the tenant: 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
under 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
different. 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 allowed 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 remove 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 substitution for that
which was part of the inheritance. In like manner the
whole of the new manor-house, with everything it
contains, must be taken to be in substitution for the
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former one.
As to the articles themselves, the lions, the vases, and
the stone garden-seats, formed part of the original
design 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
entitled 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
remain there, and the remainderman would be injured
by the removal, then the Court will presume an
intention 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
another, 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
belonged 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
removed 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
illegally 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 being changed, for by annexing it to the
freehold it becomes real property.” There were other
articles purchased by George Gregory and fixed by
him: as to these, he must be presumed to have
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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
tenant for life. As regards the tapestry it is expressly
included 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.
Sheppard , 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
simple 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 inserted 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 becoming 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 devised estates), then the devised estates, and
all the articles thereby made heir-looms, were to go
in the same manner as if the limitations in favour of
the person neglecting or refusing to make such
settlement had not been inserted in his will.
Upon the death of Gregory Gregory, George
Gregory 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
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the tenant for life of the devised estate under the will
of Gregory Gregory, and tenant in tail male in
possession 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 effect in favour of the Defendant Sir Glynne
Gregory, and thereupon the question arose, what
were the articles 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
bequest 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
estates, 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
articles are, this suit was instituted. [His Lordship
then referred to the order, and the inquiries thereby
directed, 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
difficulty. I cannot adopt the specious and ingenious
argument of Mr. Mellish, that as Gregory Gregory
was tenant for life, impeachable for waste, and has
allowed 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 restrain 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
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made so as to bind persons in succession. Still less
could any such exchange be implied, nor, if implied,
could it extend to the articles 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 Gregory, diminish
or qualify the effect of the shifting clause, or turn
mere loose personal chattels belonging to Gregory
Gregory into fixtures inseparably attached to the
freehold, and thereby prejudice his successors, 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
connection (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,
Gregory 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
considered 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
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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
Johnston'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 Lordship then read the description.] The
observation that “the painting and gilt frame may be
removed easily and without damage, and if the
painting were removed, 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 unquestionably 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 covering of the walls, and
form part of the walls themselves.
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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
afterwards 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 instance, they are in the cathedral of Milan, I
should consider that they could not properly be
removed, although 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 design 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 opinion, 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
evidence, 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
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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 furniture or fixtures which the law
would allow him to dispose of.
END OF DOCUMENT

Copr. © West 2010 No Claim to Orig. Govt. Works