The arrangement proposed in the answer, in relation to the lot of the complainants which was conveyed by the decedent in his lifetime, appears to be proper and equitable,'and is sanctioned by the court. The decedent could only convey his life estate in the lot, as tenant by the curtesy ; and the complainants, if they had thought proper, could have immediately brought their suit against the purchaser for the recovery of the premises. The latter would then have had a remedy over against the personal representatives of the decedent, upon the covenant of warranty. But as the complainants would only have been entitled to recover the mesne profits of th.e premises subsequent to the death of their father, the amount of the purchase money and interest from that time, in addition to the costs of the litigation, would constitute the damages for which the estate of the decedent would be liable on the covenant. (Staats v. The Executors of Ten Eyck, 3 Caines' Rep. 111. Bennett v. Jenkins, 13 John. Rep. 50.) The complainants, upon confirming the title to the purchaser, are therefore equitably entitled to be substituted as creditors of the estate to that extent, but no further.
The claim to the mill stones, bolts, and other machinery in the flouring mill, by the administrators in this case, is founded upon the supposition that the revised statutes have established the rule that every thing annexed to a building which is used for the purposes of trade, or of manufacture of any kind, and which is not necessary to support the walls of the building, goes to the personal representatives, and not to the heirs of the owner, upon his death. The revised statutes, in attempting to define what are to be considered assets in the hands of executors and administrators, to be applied and distributed-as personal estate of the decedent, contain, among other things, the following provision, as the fourth subdivision of the sixth section of the article *163relative to the duties of executors and administrators in taking and returning inventories : " Things annexed to the freehold, or to any building, for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support.” (2 R. S. 82.) Previous to the adoption of the revised statutes there was a distinction supposed to exist in relation to what was to be considered a part of the realty, as between landlord and tenant, and as betw^n the heir at law and the personal representatives. It was also supposed that an outgoing tenant might be permitted to remove fixtures, of a particular description, placed by him upon the premises for a special purpose, which as between the heirs at law and the personal representatives of the owner of the freehold would have descended to the heirs. But'the legislature, whether wisely or otherwise it is not for me to decide, in adopting the provision here referred to, probably intended to put the executor or administrator upon the same footing with a tenant as to the right to fixtures. Such at least was the ¡recommendation of the revisers ; as appears from their note to the 6th section, in which this provision is found. (3 R. S. 639, 2d ed.)
It was impossible, however, to define, in a short sentence of three lines, what was to be considered a part of the freehold itself, and what were mere fixtures or things annexed to the freehold for the purposes of trade or manufacture. We must therefore still go back to the common law, and to the decisions of the courts, for the purpose of ascertaining what is a substantial part of the freehold, and what is a mere fixture or thing annexed to such freehold. We must also resort to the same sourbes of information1 to ascertain what is to be considered a part of a building, and what is in its nature mere personal property and only annexed to such building temporarily for the purpose of trade or manufacture. And I think, in this case,- it may be safely assumed that it could not have been the intention of the legislature to authorize the personal representatives of the decedent, who owned this grist mill in fee at the time of *164his death, to strip it of its water-wheels, mill-stones, bolting apparatus, and running-gear; leaving to the heirs at law the mere sides or walls of the building, with its floors, partitions and roof. Such however, as I understand it, is the claim made by the defendants in this case. For it is not stated in the answer that there are any other fixtures in this grist mill and flouring mill, except machinery and other apparatus of that character and description. Fixtures of the character here claimed are not only convenient but essential to the proper enjoyment of the inheritance ; and are therefore as much a part of the freehold as the building and water power, which with them constitute the mill. The claim of the defendants to the fixtures must therefore be rejected.
The claim of the complainants to have the incumbrances upon the real estate, which were created by the testator himself, discharged by the application of his personal property for that purpose, cannot be sustained. It is true the revisers, in suggesting a reason why the former law should be changed, state one which does not necessarily apply to the case of an absolute intestacy. But the language of the section which they reported, and which the legislature adopted without alteration, clearly shows that they intended to make the new rulé applicable to intestate estates, as well as to those cases in which the decedent has disposed of his property, or a part of it, by will. (See 1 R. S. 749, § 4.) The mortgages therefore must be paid off by those who are entitled to the real estate upon which they are a lien.
It does not appear from the pleadings in this case whether the widow of the decedent joined with her husband in these mortgages, or whether they were or were not given before her intermarriage with him. But it is stated in the bill, and admitted in the answer, that the two mortgages upon the grist mill were given to secure the payment of the purchase money. In relation to that portion of the property she takes her dower subject to the mortgages. She must therefore keep down one-third of the interest, *165from the time of her husband’s death, upon the amount of principal and interest then unpaid, until the mortgages are required to be paid off; and then she must contribute, towards such payment, a sum which will be equal to the then value of an annuity of the amount of one-third of the interest upon the sum unpaid at her husband’s death for the residue of her life. (See Bell v. The Mayor, &c. of New-York, ante p. 49.) As to the other mortgage, if it was given previous to her marriage, or if she has joined with her husband in the mortgage, she must contribute to keep down the interest and pay off the mortgage in the same manner. For in such a case she is only entitled to dower in the equity of redemption, subject to the mortgage. (Hawley v. Bradford, 9 Paige’s Rep. 200.) But if the mortgage was executed, by the husb.and only, after his wife had become entitled tiran inchoate right of dower in the premisés, she must be endowed of one-third of the whole ; and the heirs at law of the deceased husband must themselves pay off the wdiole of that mortgage and the accruing interest thereon.
A decree must be entered declaring the rights of the parties accordingly; and directing a reference to a master to take the account of the estate in the usual form. And the question of costs and all further questions and directions are reserved until the coming in and confirmation of the master’s report.
The widow having remarried pending the suit, a suggestion' to that effect is to be made in the decree; with a direction that the proceedings be hereafter carried on against her and her husband as defendants.