Unharvested crops go to a devisee of the land',. and not to the executor. As against the heirs at law; they go to> the executor; but as against a devisee they do not.
It is not easy, says Mr. Hargrave, to account for this distinction,, *354which gives corn growing to the devisee, but denies it to the heir. Mr. Broom also expresses the same opinion. Lord Ellenborough thought the distinction “capricious.” But they all agree that such is the law.
Mr. Broom’s statement of the law is as follows. He says that where a tenant in fee or in tail dies after the corn has been sown, but before severance, it shall go to his personal representatives and not to the heir; but if a tenant in fee sows the land, and then devises the land by will, and dies before severance, the devisee shall have the corn, and not the devisor’s executors. Broom’s Legal Maxims, 4th ed., 269.
Lord Ellenborough’s explanation of the distinction is as follows. He says that in the testator himself the standing corn, though part of the realty, subsists for some purposes as a chattel interest, which goes on his death to his executors as against the heirs, though as against the executors it goes to the devisee of the land, upon the presumption that such was the intention of the devisor in favor of his devisee ; but that this presumption may be rebutted by other words in the will, which show an intent that the executor shall have it. West v. Moore, 8 East, 339.
And in a case tried before Holt, C. J., where the question was whether corn growing passed to the devisee of the land or his mother, the widow, to whom the testator had bequeathed “all his goods, 'chattels, etc., and the stock of his farm,” the case of Spencer, Winch., 51, was urged, where it was resolved that the devisee of land sown should have the corn, and not the executor of the devisor; to which it was answered, “that is true, if the intention of the testator does not appear to be otherwise.” And Holt, C. J., held that in that case it did appear that the intention of the testator was otherwise. It has been doubted whether Chief Justice Holt’s construction of the will was correct; but the decision is valuable as showing, first, that the general rule of law is that a devisee of the land will hold the unharvested i ■crops ; second, that the rule is based on the presumption that such ] ■was the intention of the testator ; and third, that this presumption j *355may be rebutted by other clauses in the will showing that such was not his intention. Cox v. Godsalve, 6 East, 604, note.
And such, we take it, is the settled rule where the common law is in force. It is not only so laid down in the text books and cases already cited, but in many others. Puller’s Nisi Prius, 34; Coke Litt., § 68, note 2 ; 4 Bacon’s Ab., Bouvier’s ed, 83 ; 1 Chitty’s General Practice, 92; 2 Bl. Com., Sharswood’s ed., 122, note 2 ; 2 Eed. on Wills, 141; Broom’s Legal Maxims, 4th ed., 269 ; Gilbert on Ev., 214 ; Cro. Eliz., 61; Spencer’s case, Winch, 51; Cox v. Godsalve, 6 East, 604; West v. Moore, 8 East, 339.
We find on examination that in many of the States this matter is regulated by statute; but we are not aware of any such statute in this State. There is a provision, that when from any cause there is a delay in granting letters testamentary, or of administration, a special administrator may be appointed, whose duty it shall be to collect all the goods, chattels, and debts of the deceased, control and cause to be improved all his real estate, and collect the rents and profits thereof, and preserve them for the executor or administrator thereafter appointed, etc. E. S., c. 64, § 33. And we find another provision, declaring that if any part of the real estate is used or occupied by the executor or administrator, he shall account for the income thereof to the devisees or heirs in the manner ordered by the judge of probate, etc. E. S., c. 64, § 55. But these provisions were obviously intended for other purposes, and. were not designed to change the rule of the common law with respect to the ownership of unharvested crops.
And we are inclined to think the law is best as it is; that although the rule which gives to the devisee of the land the unhar-, vested crops, and denies them to the heir at law, may seem to be j unphjlosophical, it is nevertheless founded in practical wisdom. Not unfrequently the heirs at law are mere children, without discretion of their own, to enable them to care for the growing crops, and without legal guardians to aid them. They are sometimes scattered and far away. The death of the ancestor may be sudden, and the condition of his family such, that the crops, unhar*356vested as well as harvested, may be needed for their immediate support. Will it not be better, therefore, in the great majority of cases, that all the crops, the unharvested as well as those that are harvested, should be regarded as personal property, and go to the administrator ? We cannot resist the conviction that it is better that it should be so.
Not so, however, of a devisee of the land. He is the selected object of a specific donation. If for any cause it is probable that he will not be in a condition to take charge of it at the donor’s death, the contingency can be provided for in the will. It is a matter which the testator would be likely to think of, and provide for, if necessary. If,there is no such provision, and the gift is unconditional, without words of limitation or restraint, we think it may fairly be presumed that it was the intention of the donor that his donee should take the land, as a grantee would take it, with the right to immediate possession, and the full enjoyment of all that is growing upon it, as well the unsevered annual crops, as the more permanent growth.
In this case the homestead farm of the testator was devised to his cousin and his cousin’s son — the father to have the use, improvement and income of it till the son should arrive at age, the son then to have it as his own property. There is nothing in the devising clauses, or in any other part of the will, to rebut the presumption that the devisees were to have the unharvested crops that might be growing upon it at the time of the testator’s death. On the contrary the presumption is very much strengthened by the fact that the testator gave all his live stock and farming tools, and all his household furniture and other articles of personal property in and about the buildings to the same persons. It is impossible to except out of these two sweeping clauses, any of the crops, whether harvested and in the barns, or still growing upon the land unharvested. If harvested and in the barns, they would pass by virtue of that clause in the will which bequeaths all articles of personal property in and about the buildings. If not harvested they passed as part and parcel of the realty.
*357The result is that this action, which is trover by the executor against one of the devisees named for the conversion of these same crops to his own use, cannot be maintained. As against the executor, the defendant’s was the better title.
Judgment for defendant.
Appleton, O. J., Dickerson, Barrows, Daneorth and Yirgin, JJ., concurred.