ICh.

CHANCERY DIVISION.

615

in conflict with the contract made between the corporation and WARRINGthe debenture-holders than would be the first scheme.
Motion refused. Solicitors': Batten, Profiitt & Scott; Smiles & Co.
H. C. E.

1908 Cox MOORE v.

PERUVIAN

CORPORATION, LIMITED.

In re WHALEY. WHALEY v. EOEHEICH

[1907 W. 3120.]

NEVILLE J. 1908 Fell. 5, 6.

FixturesTapestries/light of RemovalGeneral Scheme of DecorationDevise of HouseBequest of ChattelsQuestion between Devisee and Legatee. The testator in his lifetime bought a house in which the former owner had fitted and decorated, the dining-room as a perfect specimen of an Elizabethan room. As part of this scheme of decoration certain pieces of tapestry had been fixed to the walls by being nailed upon wooden frames which were kept in their place by the mouldings of an oak dado and frieze above it which were fastened to the wall by screws. A picture of Queen Elizabeth, attributed to Zucchero, painted on wood, was similarly fixed in its place over the fireplace by the mouldings of an overmantel which had apparently been constructed for the picture. The picture and tapestries were bought by the testator as part of the house and included in its price. The testator by his will gave his wife all the furniture and chattels in the house, and devised the house to trustees upon trust to permit her to reside there during widowhood, and then upon trusts under which his grandson had become absolutely entitled: Held, that the picture and tapestry, having been fixed as part of a general scheme of decoration and not for their better enjoyment as chattels, passed under the devise of the house and not under the gift of chattels. Leigh v. Taylor, [1902] A. C. 157, distinguished. EDWAKD WHALEY, by his will dated January 13, 1879, after appointing trustees, gave all his furniture, plate, wine, carriages and carriage horses, and all other goods, chattels, and effects belonging to him in or about his dwelling-house, gardens, pleasure grounds, and lands constituting his Taplow estate to his wife Elizabeth absolutely. He then devised his said dwelling-house,

616
SEVILLE

CHANCERY DIVISION. 1908

[1908]

J. Taplow Lodge aforesaid, with the gardens and pleasure grounds and lands, and all his real estate at Taplow to his trustees upon WHALEY, trust to permit his said wife to occupy and enjoy the same during in re. widowhood, and after her death or second marriage he gave the J same to his son Herbert "Whaley if he attained twenty-six. The r, lioEHBicH, t e B t a t o r d i e d o n J u l y 1 5 j 1879 _ Herbert Whaley attained twenty-six on January 1, 1885. By a settlement dated July 10, 1880, he conveyed his interest in the Taplow estate to trustees upon trusts under which his son, the plaintiff, became entitled to the fee simple, subject to the interest of the testator's widow, upon his attaining twenty-one. That event happened in 1902, and on November 16, 1903, the trustees of the settlement conveyed the legal estate to him. The testator's widow died on June 2, 1907, without having been married again, and having by her will given all her personal estate to her daughter Mrs. Eoehrich absolutely. This summons was taken out by the plaintiff against Mrs. Eoehrich and her husband for the determination of the question whether a portrait of Queen Elizabeth, on wood, and some tapestries attached to the wall of the dining-room in Taplow Lodge passed under the devise of the house or under the gift of chattels to the testator's widow. It appeared from the evidence that the Taplow Lodge estate had been purchased by the testator in 1877 from a vendor who had recently built or rebuilt the house as a complete specimen of an Elizabethan dwelling-house. In particular the dining-room, which measured twenty-nine feet by twelve feet six inches, had been designed as an Elizabethan apartment. The lower parts of the walls were covered by a dado of oak panelling two feet six inches high; the upper parts of the wall were on three sides covered by panels of tapestry representing the seasons and rural scenes, and by green stamped velvet; the remaining wall was also in its upper part covered by green stamped velvet. The portrait of Queen Elizabeth was in oils, on wood, and was fitted into an overmantel of carved oak which had apparently been constructed for it. The ceiling, doors, and doorways had been treated in one scheme of decoration with the doors and overmantel. In one case a door leading into the hall had been

1 Ch.

CHANCERY DIVISION.

61?
NEVILLE ,T.

covered over with a panel of tapestry and the tapestry cut to allow the door to be opened. The tapestry panels were nailed upon wooden frames which were fixed in their places by fitting behind mouldings of the dado and a frieze above it; the mouldings were fastened by screws from the front. The picture was also held in its place by mouldings. Neither picture nor tapestries were fastened to the freehold in such a way as to make them irremovable without injury to the building. Sargant, for the plaintiff. The question here is between the devisee of the house and a legatee of chattels. The rule of law is that as between the heir or devisee of real estate and the executor nothing which is attached to the freehold ever goes to the executor. Lord Mansfield's judgment in Lawton v. Salmon (1) shews that a relaxation of the old rule had been gradually made in favour of the tenant in cases between landlord and tenant, and of the tenant for life in cases between such tenant and the remainderman, but not as between heir and executor: Fitzherbcrt v. Shaiv (2); Bain v. Brand (3); Norton v. Dashivood. (4) But in this case the tapestry and picture would not have been removable even if the case had been one between tenant for life and remainderman, because they form part of a general scheme of decoration of the room and are put there to give the room a certain character and value, not to be enjoyed for their own sakes as ornament: D'Eyncoiort v. Gregory (5); Norton v. Daskwood. (4) In In re De Falbe (6), which went to the House of Lords under the name of Leigh v. Taylor (7), the Lords Justices held that the tapestry in question in that case had been fixed to the walls for the better enjoyment of the tapestry as a chattel. In the House of Lords Lord Halsbury seems to regard the question as one of intention only, but there can be no presumption of intention between a devisee and legatee of the same testator. The testator in this case had not fixed the tapestry
(1) (1781) 1 H . Bl. 259, n. (4) [1896] 2 Ch. 497. (2) (1789) 1 H . Bl. 258. (5) (1806) L. E. 3 Eq. 382. (3) (1870) 1 App. Cas. 762. (6) [1901] 1 Ch. 523. (7) [1902] A. 0. 157.
VOL.

mos
WHAMY

,,,.. ltoF Rrcir -" -

In re

I. 1908.

2T

618
NEVILLE

CHANCERYJfDIVISION.

[1908]

J. and picture, but had bought them as part of the house. Having 1908 regard to the history of the subject and the state of the authorities, W HALEY, the House of Lords cannot have intended to decide that the In re. question was precisely the same between a devisee and legatee as W'HALET v, between a tenant for life or years and the remainderman or ROEHRICH. reversioner. Reynolds v. Ashby d- Son (1), a case between a mortgagor and mortgagee, shews the importance of the relation between the parties. Jenkins, K.C., and A. AB. Terrell, for the defendant. The tapestry in this case is fixed in the usual way, indeed in the only way in which it can be fixed for purposes of decoration. Nothing which is fixed for the purpose of decoration and would do for any other room can become part of the house. The case is governed by In re De Falbe (2) as affirmed by the House of Lords under the name of Leigh v. Taylor. (8) In that case Rigby L.J. treats articles which have been affixed for purposes of ornamentation as one of the regular established exceptions, and Vaughan Williams L.J. says that exception has been established from the earliest times : see Squicr v. Mayer (4) and Harvey v. Harvey. (5) D'Eyncourt v. Gregory (6) was disapproved in In re De Falbe (2), and Norton v. Daslnoood (7) merely followed it. A light attachment to the freehold does not per se throw the burden of proving intention on the person claiming the chattels as personalty. But here the intention of the testator to enjoy them as chattels is perfectly clear. J. I need not trouble you, Mr. Sargant. I think this case presents problems of very great difficulty, having regard to the position in which one finds the authorities; but it seems to me, in the present case, that it would be unreasonable to hold that the testator here did not intend the particular decorations of the room in question to pass with his devise of
NEVILLE (1) [1004] A. 0. 4G6. (4) (1701) Freem. Ch. 249. (2) [1901] 1 Ch. 523, 530, 535. (5) (1741) 2 Str. 1141. (3) [1902] A. C. 157. (6) L. R. 3 Eq. 382. (7) [1896] 2 Oh. 497.

1 Ch.

CHANCEEY DIVISION.

619

the house. It seems to me that here it is a question of con- NEVILLE J. struction, although, of course, in arriving at the intention of the 190s testator, one must take into consideration what the law with WHALEY In re regard to the passing of fixtures is. H LEY It is, I think, to be noted here that although there is a gift of * the furniture and chattels in the house, there is no mention of ROEHRICH. fixtures in the testator's will. I think that I am bound to take into consideration the fact that the testator purchased the house and that that purchase included as part of the house the fixtures in question. The chief difficulty that I feel with regard to the case is whether I ought to treat the case of Leigh v. Taylor (1), in the House of Lords, as a decision to the effect that .a question of this kind has to be decided in the same way, whether it rests between a limited owner and another, or whether it rests between the administrator and the heir of an intestate. Now I do not think it would be right, having regard to the position of the preceding authorities, so to treat Leigh v. Taylor (1), and I think that it must be held to be a decision upon a question arising between tenant for life and remainderman, treated, as it was by the House of Lords, as a pure question of fact. Stirling L.J. in In re Da Falbe (2) points out (and, if I may say so respectfully, I think correctly) what was the origin of the relaxation of the application of the original maxim under which whatever was attached to the freehold passed as part of the freehold, and it is to be noted that, in the passage from Lord Hardwicke's judgment in Lawtonv. Lawton(3) to which he refers, the grounds given are applicable to the case of limited ownership, but are not applicable to the case where the owner of the fee ornaments or decorates the4 house in which he resides, or acquires in fee a house for residence which is already ornamented and decorated in a particular way. I think it is clear here that the decoration originally was intended to give the whole room the appearance of an Elizabethan room, that the whole decoration was in unison, and that the ornaments were inserted, primarily, for the purpose of creating
(1) [1902] A. C. 157. (2) [1901] 1 Ch. 638. (3) (1743) 3 Atk. 13, 14. 2 T %

620
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CHANOEET DIVISION.

[1908]

J. a beautiful room as a whole, and not intended for the mere display and enjoyment of the chattels themselves. I am not entirely WHALBY, unaffected in that consideration by the fact that part of this n re ' tapestry was placed over a part of the wall in which there either r. originally existed, or afterwards was made, a door, and that the OEHBICH. tapestry was cut in order to enable the door to be used, which, I must say, I think indicates that the owner was rather treating the tapestry as a decoration of the room than selecting a proper position for the display of his tapestry. In order to see what the testator meant by the will he made, one has to consider this : that an owner in fee, who attaches things even by way of ornament to the freehold, has no reason for desiring that they should continue as chattels rather than become a part of the house, and. the position of a tenant for life, or of a tenant for years, is obviously of an entirely different character, because there, the property going in different directions, the tenant for life is making a present to somebody else if he spends money in ornamenting the rooms which he occupies only as tenant for years or for life. 1908 But, with regard to an owner in fee, it is a matter of perfect indifference whether you call the things chattels or whether you call them parts of the house. The ownership is absolute in his case in either event, and at any time during his life he can sever the ornaments and make them once more chattels, and upon his death he can dispose of them as chattels if he pleases, and again sever them from the freehold, so as to enable them to pass to his executor or to his legatee, as the case may be. But, if he has not done so, I cannot see any ground for supposing that when he devises the house he does not intend the house to pass as he bought it, and as he has used it with regard to the fixed ornaments which were used with it. In this particular will, I certainly see no ground for thinking that he had any such intention. He could readily have disposed of the tapestry or of the picture, did he not suppose that it passed under the devise of the house. I think it ought to be borne in mind that to apply the same idea or principle between the devisee and the executor as is applied between the tenant for life and the remainderman, might lead to results which would be very little anticipated by a testator. In all cases where a house was

1 Oh.

OHANOEEY DIVISION.

621

devised to a devisee without more, every wainscot, every form of NEVILLB J. ornament or decoration in the house that could be removed 1908 without structural injury, could be and would be removed by WBILVY In re the executor, with the result that all that the devisee would get would be the bare walls of the residence devised to him. I _ think, in nine cases out of ten, so to hold would defeat the EoEHBI0Hintentions of the testator. I come to the conclusion that, in this case, the devisee of the house is entitled to the pictures and tapestries. Solicitors: St. Barbe Sladen d Wing; Horace W. Chatterton. J. B, B.

In re NEW LONDON AND SUBURBAN OMNIBUS COMPANY. APPLEYARD v. SAME COMPANY.

[1907 N. 1277.]

NEVILLE J.

1908 J&J^s.

CompanyDebenturesRegistrationCreation of Charge Re-issueCompanies Act, 1900 (63 & 64 Vict. c. 48), s. 14 Companies Act, 1907 (7 Edw. 7, c. 50), s. 15. Three years before January 1, 1901 (when s. 14 of the Companies Act, 1900, came into operation), a company conveyed and assigned all its present and future real and personal property (including uncalled capital) to trustees to secure an issue of debentures, each of which gave to the registered holder thereof a first charge on the freehold and leasehold property of the company and a floating charge on all its other assets. A few days after the execution of the trust deed the debentures were sealed and issued, seven of them (for 100/. each) being issued to A. In 1902 the company purchased from A. the seven debentures and took a transfer of them to U. as its nominee. U. at once deposited them and a blank transfer with a bank to secure an overdraft. In 1905 the seven debentures were delivered up to the company and cancelled, and the company issued one debenture for 700?., but otherwise in the same form, to E. to secure a cash advance. This debenture was never registered under s. 14 of the Companies Act, 1900. In January, 1907, a winding-up order was made against the company, and on August 28 there came into operation s. 15 of the Companies Act, 1907 (which retrospectively validates the security of re-issued debentures under certain circumstances). In a debenture-holders' action commenced on