Fay v. Muzzey

Hoar, J. 1. The court are of opinion that manure from the barnyard of the homestead of the intestate, standing in a pile upon his land, although “ not broken up nor rotten, and not in a fit condition for incorporation with the soil,” is not therefore assets in the hands of his administratrix, and that she is not chargeable therewith as a part of his personal estate. Manure, made in the course of husbandry upon a farm, is so attached to and connected with the realty, that, in the absence of any express stipulation to the contrary, it passes as appurtenant to it. This has been so decided as between landlord and tenant, in the cases of Daniels v. Pond, 21 Pick. 367; Lassell v. Reed, 6 Greenl. 222; and Middlebrook v. Corwin, 15 Wend. 169. The reason of the rule is, that it is for the benefit of agriculture, that manure, which is usually produced from the droppings of cattle or swine fed upon the products of the farm, and composted with earth or [56] vegetable matter taken from the soil, and the frequent application of which to the ground is so essential to its successful cultivation, should be retained for use upon the land. Such is unquestionably the general usage and understanding, and a different rule would give rise to many difficult and embarrassing questions. The same doctrine was applied, as between vendor and vendee, in Kittredge v. Woods, 3 N. H. 503, and in Goodrich v. Jones, 2 Bill (N. Y.) 142. The doctrine as to fixtures and incidents to the realty is always most strictly held, as between heir and executor, in favor of the heir, and against the right to disannex from the inheritance whatever has been affixed thereto. Elwes v. Maw, 3 East, 51. The circumstance that a thing is not permanently affixed to the freehold, but is capable of detachment, and is even temporarily detached from it, is not conclusive against the right of the owner of the land. Thus keys of doors go to the heir, and not to the executor; Wentworth on Executors, 62 ; and in Goodrich v. Jones, ubi supra, it was held, that fencing materials, which have been used as a part of the fence, accidentally or temporarily detached from it, without any intent of the owner to divest them permanently from that use, do not cease to be a part of the freehold. In Bishop v. Bishop, 1 Kernan, 123, the same principle was applied to the case of hop poles, which had been taken up and laid in heaps for preservation through the winter; and it was held, that they would pass by a conveyance of the land. 2. The manure from the hotel stable, which is agreed to have been personal estate, and was included in the inventory, must be accounted for by the administratrix; and it is no sufficient account to say that she has expended it upon the real estate which has since been sold for the payment of debts. There is no way in which it can be made certain that it has increased the amount received from the sale of the real estate; and if this were established, an administrator has no right thus to expend the personal property of her intestate. 3. The chattels which were returned by the administratrix in her inventory must be accounted for by her. If it should ap [57] pear that they had been delivered by her to her successor, the administrator de bonis non, that would discharge her from her liability. The fact that the chattels were in existence, and had not been sold by the administratrix, would make it proper for him to include them in his inventory. They belong to the estate, and remain to be administered, and the administrator de bonis non is entitled to receive them, or to maintain a suit for their value against the administratrix. Having made a demand for them, and not having actually received them into possession, it would have perhaps been more correct to insert in his inventory the claim for their value, rather than the chattels themselves. Perhaps, when he returned the inventory, he expected to receive them. The fact that he included them in his inventory in this form might be evidence that they had actually been delivered, if that question were in controversy. But the fact being otherwise, there is no estoppel against showing it; and the chattels being a part of the estate which the administratrix has received, and not applied in any manner according to her official duty, she is to be charged with their value in this action. The last two items in the auditor’s report are therefore to be added to the first sum found by him to be due from the defendants to the plaintiff, and judgment being rendered for the penalty of the bond, execution is to issue for those amounts, with interest from the date of the auditor’s report.