42 Del. 274 | Del. Super. Ct. | 1943
This is an appeal from a judgment rendered by a Justice of the Peace in an action of replevin.
Mary J. Warrington, the life tenant, died on January 20, 1940. No administration of her estate was had until July 20, 1942, when letters of administration were granted to the defendant, Senara Warrington, a daughter.
In 1942, proceedings to partition the real estate of Levi J. Warrington, deceased, were instituted in the-Orphans
At the time of the sale the stoves remained in the building and as they were attached thereto. Thereafter, they were removed and sold by the defendant administratrix on the theory that they were personal assets of the deceased life tenant, and not fixtures.
The purchasers of the real estate sued the defendant administratrix in replevin before a Justice of the Peace to recover possession of the two Estate Heatrolas and a gas stove which had been in one of the apartments, and judgment by default was rendered in their favor. The defendant appealed to this court, where a jury trial was waived; and it was agreed that, under the evidence, the right of possession of the gas stove was not for decision as it belonged to a tenant of one of the apartments.
A fixture is an article which, though originally a chattel, is, by reason of its annexation, regarded as a part of the land, partaking of the character of realty and, ordinarily, belonging to the owner of the land. The rule of the common law is that whatever is once annexed to the freehold becomes a part of it, and cannot be removed except by him who is entitled to the inheritance. The rule as far back as can be traced was never inflexible and without exceptions, and was variously applied strictly or less so as the relationship of the parties was found to be. The cases disclose little uniformity as to the tests to be applied in determining whether or not a chattel used in connection with'land is to be considered a fixture. At common law the mode of annexation, whether slight and temporary, or firm and permanent, was the criterion. By other authorities the adap
In the instant case the life tenant was the residuary devisee under the will of her husband. It may be supposed that, by devoting the building to use as an apartment house, the income therefrom was increased. There is no reason why a life tenant of a building may not seek to derive the utmost benefit from it. In some sense the use is a trade or business; and it is not unusual. The chattels now claimed to be fixtures were but stoves using oil as a fuel instead of wood or coal. They were ordinary articles of commerce not specially designed for use in the particular building. The type of stove required outside fuel tanks, making necessary the use of small supply pipes leading from the tanks through holes bored through the floors to the stoves. These pipes, for their support, were fastened to the building by small clamps. Practically speaking, the stoves were as easily and' readily removable as ordinary stoves, and with no resulting damage to the building except the two small holes left in the floors. It is true that the stoves were adapted and appropriated to the use and purpose of the building, but no more so than the usual coal stove; and they were likewise adaptable to use in any building having a chimney. The evidence does not disclose when the registers were placed in the ceilings. For all that appears they were there when' the oil stoves were installed. It is difficult, therefore, to infer an intention to make the stoves permanent accessions to the building either from the mode of annexation for it was but slight, or from their adaptation to the use and purpose of the building, for they were usable in almost any building, or from the relationship of the annexor to the realty, for
It is contended that the right to remove the stoves was lost because they were allowed to remain in the building for an unreasonable length of time after the expiration of the life tenancy; and it is said that, unexplained, nonaction on the part of the administratrix and the heirs at law of the life tenant for over two years raises the presumption that it was the intention of all of the interested parties that the stoves should continue to go with the real estate. The rule of law contended for has no application. If the theory of a presumption of abandonment is relied on, the answer is that the stoves never had become fixtures. See Rey v. Young, 160 Iowa 613, 142 N. W. 393, 46 L. R. A. (N. S.) 947, Ann. Cas. 1915D, 258. If what is meant is that the purchasers of the real estate had been led to believe that the stoves were permanent accessories to the building, there is no evidence of an estoppel by conduct which would preclude the administratrix from asserting the rights of the estate. One of the plaintiffs, Mrs. Hignutt, is a daughter of the deceased life tenant; and, as one entitled to share in the residue of the personal estate of the deceased, she was entitled to apply for the issuance to herself of letters of administration. 3808, Rev. Code. It may be assumed that administration of the estate was postponed by the express or tacit agreement of the heirs at law. All of them are re
Judgment for the defendant.