GALE vs. WARD.

amended, or altered, as the Court should judge proper upon the said facts.

Burnside and Ward, for the defendant, contended that the machines in question were component parts of the manufactory, essential to the use or occupation of the building, and therefore were to be considered as real property, not to be removed on attachment.

But if they were to be considered as personal chattels, the property of them was not in Beaton, so as to be subject to attachment upon process against him. The Brighams were the legal owners; and the deputy sheriff who removed the machines is liable to them in trespass, as the defendant would also have been had he taken them.

If the defendant was liable to the plaintiff originally, yet, by the interference of the latter, and his prohibiting the body of his debtor to be taken in execution, he has lost his remedy against the defendant.

Lincoln, for the plaintiff, argued that the machines were mere personal chattels, and subject to be removed when attached as other chattels. (1)

[ * 356 ]

*They were the property of Beaton after the conveyance by Brigham to him, and being left in his possession after his mortgage, the mortgage was fraudulent as against creditors. (2)

The defendant is liable in this action for neglecting to seize and sell the machines on the plaintiff's execution; the possession of his deputy being, in contemplation of law, his own possession. (3)

Nor has the plaintiff defeated his right of action, by forbidding the imprisonment of the judgment debtor in execution, since it sufficiently appears in the case that such imprisonment would have been wholly fruitless. (4)

PARKER, C. J. The attachment made by the sheriff was incomplete, for want of removing the machines, or of giving such notice of the attachment, by placing them in the custody of a servant, as would have prevented a second attachment.

They must be considered as personal property; because, although in some sense attached to the freehold, yet they could be easily disconnected, and were capable of being used in any other building erected for similar purposes. It is true that the relaxation of the

(1) 1 Salk. 363, Poole's case.

-3 East, 38, Elwes vs. Maw. -2 East, 88, Penton vs. Robart. -8 Mass. Rep. 416, Taylor vs. Townsend. —4 Mass. Hep. 514, Wells & Al. vs. Banister & Al.

(2) 1 Wils. 260, Ryall vs. Rolle.

(3) 13 Mass. Rep. 114, Vinton vs. Bradford.

(4) 11 Mass. Rep. 317, Lyman vs. Lyman & Al.

GALE US. WARD.

ancient doctrine respecting fixtures has been in favor of tenants against landlords; but the principle is correct in every point of view; and it is to be considered, where they are removed from the reality by an officer, who takes them for the debt of the tenant, that they go substantially to his use.

The mortgagees of the building and privilege, not being in possession, had no possession of the machines, which were therefore liable for the debts of the mortgagor.

For the

Whether the deputy sheriff, who made the second attachment, did right in satisfying posterior executions out of this property, before the plaintiff's, is a matter to be settled between him and his master, and not a subject of inquiry in the present case. sheriff, having had it in his power to attach, and having returned that he did attach, is liable for not having the [*357 ] machines to satisfy the plaintiff's execution. (a)

Judgment according to the verdict.

(a) [2 Kent, 3d ed. 343, 345. Walker vs. Sherman, 20 Wend. 636.— Morgan vs. Arthur, 3 Watts, 140.- Lemar vs. Miles, 4 Watts, 330.- Greene vs. Malden, 10 Pick. 504. Kirwan vs. Latour, 1 Harr. & Johns. 284. Greenl. - Farrar vs. Stackpole, 154. Powell vs. Monson and Brimfield Manufacturing Company, 3 Mass. 459. Cresson vs. Stout, 17 Johns. 116. - Tobias vs. Francis, 3 Verm. 425. Swift vs. Thomson, 9 Conn. 63.— Winslow vs. The Merchants Ins. Co. 4 Met. 306. — ED.]

ELIJAH WILDER, Appellant, &c., versus DANIEL Goss.

A testator, among other descendants, left sundry children of a deceased daughter. In his will, he mentions her husband as his son-in-law, and gives a legacy to one of the said grandchildren; from which it was inferred that he had not forgotten the other children of his said daughter; and that they were therefore not entitled to a proportion of his estate, as though he had died intestate, under the provision of the statute of 1783, c. 24, § 8.

THIS was an appeal from an order or decree of the judge of probate for this county, accepting and allowing the report of commissioners, appointed by him to make partition of the real estate, of which Thomas Goss, deceased, died seised and possessed, among the devisees named in the last will of said deceased, according to the said last will. The appeal was claimed and made in right of Sophia Wilder, wife of the appellant, on the ground that she, being a grandchild, and by representation an heir at law, of the said deceased, and not having any legacy or devise made in her favor in the said will, nor being mentioned therein, ought by law to have 305

26*

WILDER, Appellant, vs. Goss.

had her share or portion of said deceased's estate assigned to her, in the same manner as if the said Thomas had died intestate; yet the said commissioners had not assigned to her any part of said estate in the said partition. And it was agreed that the said Sophia was such grandchild and heir at law, her mother, Rebecca Thurston, having been a daughter of the testator, and having died before him, and before the execution of the said will, leaving seven children, who all survived the testator, their grandfather.

The testator, in his said will, observes that, having before that time conveyed to his son-in-law, John Thurston, (who was the husband of his daughter Rebecca,) the principal part of his real estate, in payment of a debt he owed him, in reward for his labor and service, and to enable him to pay a debt, for which the testator had mortgaged his farm, he shall not devise any portion of his

estate to him. He then gives certain chattels to his [*358] * grandson, Thomas Thurston, brother of the said Sophia; and after divers other legacies, specific and pecuniary, he devises the residue of his estate to his three daughters then living.

By the statute of 1783, c. 24, § 8, it is enacted, "that any child or children, or their legal representatives, in case of their death, not having a legacy given him or them in the last will of their father or mother, shall have a proportion of the estate of their parents assigned unto him, her, or them, as though such parent had died intestate; provided such child, children, or grandchildren, have not had an equal proportion of the deceased's estate bestowed on him, her, or them, in the deceased's lifetime."

Smith, for the appellant. The most liberal construction given to the statute by this Court in the cases of Terry & Al. vs. Foster & Al., (1) Wild & Ux. vs. Brewer, (2) and Church vs. Crocker, (3) which are all the cases that appear to have brought this provision into question, is, that though it is not necessary that the child or grandchild should have a legacy by the will, yet he must be named, or in some way noticed in the will. Unless the Court in this case will go beyond the principle, in those decisions, which seems to be intelligible, definite, and certain, the decree of the judge of probate must be reversed. Another construction, excluding the claim of the appellant, will leave the law so unsettled that every case will be a new one, and require a distinct adjudication.

Burnside, for the respondent. The three cases already mentioned are the only ones in our own reports upon this point; and

(1) 1 Mass. Rep. 146.

(2) 2 Mass Rep. 570.

(3) 3 Mass. Rep. 17.

WILDER, Appellant, vs. Goss.

we should look in vain into the decisions of other courts for aid in the construction of this clause of this statute.

The provision was unquestionably intended to protect heirs from the forgetfulness of their ancestors and the mistakes of scriveners. So says the preamble of the provincial act of 12 Will. 3, which contained a similar provision, and of which the statute

of 1783 is a* revision. And in the cases decided, the [* 359 ] Court adopt the reason given in that preamble, though

the act itself is repealed. Then, if it appears to the Court that the child claiming the distributive share was not forgotten by the testator, the provision of the statute has no application.

Now, in the case before the Court, there is satisfactory ground of presumption that the wife of the appellant was not forgotten. The testator mentions her father, John Thurston, as his son-in-law, and speaks of an advancement to him. The very term son-in-law implies a reference to his wife and children; and if his wife, Rebecca, had survived her father, she certainly could have claimed no share of his estate; much less can her child claim. Further, the naming of Thomas, a brother of the appellant's wife, shows plainly that he had called his grandchildren to mind.

Per Curiam. The cases referred to in the argument in principle approach very near to the case before us. Wherever it appears that the testator has, through forgetfulness or mistake, omitted to bestow any thing upon his child or grandchild, the legislature wisely intended to effect that which it was highly reasonable to believe the testator, but for such forgetfulness or mistake, would himself have done. To go further than this would be, in its measure, to defeat the principal intention of the legislature, in the first section of the statute, which authorizes every person seised of an estate in lands, which may extend beyond his own life, to devise the same as he shall think fit. Wherever, then, it may be fairly presumed, from the tenor of the will, or of any clause in it, that the testator intentionally omits to give a legacy or to make a devise to his child, or grandchild whose parent is dead, the Court will not interfere.

How is the case at bar in relation to these principles? Have we sufficient ground to say that the appellant's wife was omitted, in the distribution of her grandfather's property, through his forgetfulness of her, or by any mistake? We think not. The testator discovers a full and particular recollection of [* 360 ] her father, and of some past dealings between them. He recognizes him as his son-in-law, which must have brought his deceased daughter to his recollection. He gives a legacy to one of her children, who bore his name; by which it appears that the family was in his remembrance. These two circumstances, we

WILDER, Appellant, vs. Goss.

think, bring this case within the reason of the former decisions of this Court which have been referred to.

Decree affirmed

DANIEL STONE AND OTHERS, Petitioners, &c., versus JONATHAN DAVIS AND OTHERS.

No review lies upon a report of referees, appointed pursuant to Stat. 1786, c. 21, where the party found indebted has paid the sum awarded, and the report, with the acknowledgment of satisfaction, had been returned and recorded, accord ing to the statute.

THIS was a petition for a review of a judgment rendered by the Circuit Court of Common Pleas for this county.

The petition stated that the said Davis & Al. having a demand against the said Stone & Al., the parties had, by an agreement entered into before a justice of the peace, pursuant to the statute of 1786, c. 21, submitted the same to the decision of certain referees, who had made a report, in favor of the respondents, to that court. The petitioners having paid the sum awarded against them, the respondents had acknowledged the payment thereof, by their receipt on the back of the report, which had been returned and recorded according to the statute. The petition states certain facts, which had come to their knowledge since the acceptance of the report, which, in equity and good conscience, would entitle them to a rehearing of the matter submitted to the referees. Bigelow, for the petitioners. By the statute of 1791, c. 17, 2, the justices of this Court "are vested with [*361] *a discretionary power to grant reviews in civil actions, whenever they shall judge it to be reasonable." It will not be denied that this was a civil action. Nor is it an objection to this application, that the decision complained of was made by judges of the parties' own selection. This Court has often granted reviews of actions, which had been submitted to the award of referees by a rule entered into in the Court of Common Pleas; and in such cases have ordered new pleadings. In this case, it is true, there is no declaration in form; but a declaration is but a part of the pleadings; and the Court may as well order the respondents to file a declaration upon their original demand, as to direct new pleas to a declaration already formed. If it be objected that, in this case, the parties found by the referees to be in debt