THE COTTAGE GARDENER AND COUNTRY GENTLEMAN’S COMPANION, February 24, 1857. 351 
transmit it to bis successor. If bis successor may recover 
damages from an executor for a removal of sucb buildings 
by tbe testator, tben tliere can be no doubt tbat be, in his 
turn, must maintain, and if he must maintain, be must 
also restore and rebuild in case of decay, so that the 
benefice might thus ultimately become permanently saddled 
with a useless burden. Hothouses, pineries, and con¬ 
servatories, do not in this respect differ from observatories, 
menageries, or aviaries. The parsonage and the glebe are 
lor the decent and suitable residence and sustenance of the 
incumbent, and are to be maintained according to the 
intention of the law out of the revenues of the benefice. 
This parsonage the succeeding incumbent is entitled to 
receive from his predecessor of such convenience and 
character as he finds it, and in as good condition—properly 
repaired or even rebuilt if by his neglect it has become 
damaged; the glebe buildings to be in good repair and 
order ; and, in fact, whatever he is so entitled to receive he 
must transmit; and the extent to which, in any particular 
case, a reciprocal right and duty exist must be determined 
by a liberal and sensible consideration of the circumstances. 
It is impossible from the nature of the thing to lay down 
a more precise rule. Therefore, cases may occur which are 
near the dividing line, and so present a practical difficulty; 
but what wo have to deal with, namely, hothouses, nearly 
70 feet in length, present none. The testator did an un¬ 
necessary, and probably a very unwise and unsuitable act in j 
erecting them; and when he had done so there was a locus i 
penetentiae; nothing prevented him from removing at once ! 
all that was mere fixture, and that is all we need decide now, | 
though, as we have already intimated our opinion, we 
should have no difficulty in deciding, if necessary, that he 
might have removed the whole of the structure. Thus far 
on the strict law of dilapidations by which a deceased 
incumbent is always supposed to have committed a wrong, 
; for which, from the peculiar nature of the holding and of 
the property, there was no one who could sue him ; but for 
which, by custom and contrary to the general rule of law, 
an action would lie against his personal representative; and 
it is only with reference to this law of dilapidations that 
our previous remarks must be considered as made. It is, 
of course, a different, and perhaps a more difficult question, 
whether, if the incumbent at his death leave entire on the 
glebe and in good repair an erection which he might himself 
have removed, the executors may, within a reasonable time 
after his death, remove such parts of it as are in the 
nature of fixtures, though capable of removal without injury 
to the freehold. The case now supposed is that of an 
erection respecting which, if the deceased had left it out 
of repair, his successor could not have maintained any 
action for dilapidations, which he himself would not be 
bound to keep in repair, which imposed no burden on him, 
and which he might have removed; for it would be un¬ 
reasonable to hold that he might not remove what might be 
useless or unsuitable to the living, or even inconvenient to 
the occupation of the parsonage or glebe, and which for any 
one of these reasons he was not bound to keep in repair. 
The question thus stated clearly stands apart from the 
peculiar law of dilapidations. It has no reference to the 
character of the testator as incumbent of the benefice; or 
to the relation between him and the defendant as prede¬ 
cessor and successor to the same incumbency. The testator 
has committed no waste, either voluntary or permissive; he 
has left on the glebe that which he might have removed, 
and which being left imposes no duty on his successors : it 
is that which, if he had himself severed from the freehold, 
would clearly have reverted to his personal estate, and gone 
1 to his personal representative; but he has by his dealing, as 
the case states, so united it to the freehold and annexed it 
inseparably to it, that it is no longer part of his personal 
estate. Messrs. Amos and Ferrard in their excellent book 
on The Law of Fixtures, say it may, they conceive, be laid 
down that the incumbent or his executor will in general be 
entitled to fixtures of the same description as those which 
formed part of the personal estate of a deceased tenant for 
life. It may be worth observing, that there is this distinc¬ 
tion between an incumbent and an ordinary tenant for life : 
the former has at no time any reversion to any present 
interest or rights; whereas, when the latter annexes any¬ 
thing to the freehold, or in any way meddles with it, he 
annexes to, or meddles with that in which some other 
person or persons has or have, at the moment, an existing 
interest, which may be increased or decreased in value by 
what he does, and which the law will protect. But neither 
the patron of the benefice nor the future unknown successor 
had any such interest in the parsonage or glebe. If any 
one is entitled here it is the ordinary; and he is not so in 
respect of any interest vested in him, but derived from the 
general public object of the endowment of the clergy. 
There seems a reason for enlarging the rule as between 
an executor and successor, where the subject matter in 
dispute is not of a kind that can be considered as inalienably 
attached to the benefice, for in such a case there would be 
no ground even for the interference of the ordinary. 
Suppose the case of an observatory, which an incumbent 
having built has taken down again; it would be absurd to 
talk of the ordinary proceeding to prevent it. When, how¬ 
ever, the cases between an executor and tenant for life or 
remainder man are looked into, they will be found to turn 
each on its particular circumstances; the character, the size, 
the mode of attachment, the facility of severance, and the' 
injury to the freehold by severance. With regard to an 
ecclesiastical benefice, the character and object of the 
building to which the chattel is attached, and the mode in 
which it has been so attached, seem of very great con¬ 
sequence in determining whether there was any intention to 
separate it permanently and irrevocably from the personal 
estate. Here there is an erection in itself purely a matter 
of luxury and ornament, which the testator might have 
pulled down, but which he, probably wishing to enjoy so 
long as he lived in the benefice, did not remove; to this, 
and for the purpose of completing the luxurious or orna¬ 
mental occupation, a chattel is so attached that it may be 
detached without injury to the freehold. We think the 
inference is, that it never ceased to be a chattel during the 
testator’s life; that it continued to be so at the moment of 
his death ; and therefore passed as personal estate. Had 
this chattel been merely screwed, or had it been as a 
telescope in an observatory strongly screwed, as such 
instruments commonly are to what is part of the building 
itself, we think no question could have been raised; and 
this seems to us to present no substantial difference from 
an observatory. Our judgment therefore will be for the I 
plaintiffs. 
Judgment for the plaintiffs. 
Let no one strain this decision beyond its real con¬ 
clusions. It does not decide that every hothouse, or 
greenhouse, or conservatory erected by an incumbent on 
the premises of his living during his incumbency may 
be removed either by himself or by his executors. The 
decision does not justify such a conclusion as that. For 
example, if the hothouses had been attached to the 
rectory house by timber let into its walls; if doors and 
windows from that rectory opened into the hothouses; 
and if competent surveyors stated that the rectory j 
house would be of less annual value after the removal 
of the hothouses, then, as in the case of Buckland v. \ 
Butterfield, decided by the whole Court of Common 
Pleas in 1820, in the case of a tenant for years, with 
remainder of the premises to him for life, it is doubtful 
if either the rector or his executors would be allowed to 
remove such hothouses. 
The Anniversary Meeting of The Entomological 
Society was held on the 26th of January. The whole 
of the Society’s officers were re-elected, and its funds 
shown to be in a flourishing condition. The February 
Meeting took place on the 2nd instant, of which we 
will give a full report next week. 
