Dana v. Burke , 62 N.H. 627 ( 1883 )

As the boat is not named, it is not included in the bequest to the defendant, unless the language used necessarily embraced it, or it had been annexed to and become an essential part of the property bequeathed. The bequest is of "the use of my cottage in Sunapee, and the land on which it stands, which I purchased of Lafayette Colby, and all other buildings standing thereon, with all the household furniture in said cottage." By no reasonable construction can this language cover the boat. Neither does it appear that it had become all essential part of any portion of the property bequeathed. Things movable and personal in their nature may, by intentional adaptation, annexation, and use, become an essential part of the realty, and pass by a conveyance as an incident to it, as the keys of a house pass by a conveyance of the house. Mill-saws and belting attached to and used as a part of a mill, though temporarily severed, pass with the mill. Burnside v. Twitchell,43 N.H. 390; And stanchion-timbers, tie-chains, doors, windows, and hinge hooks, removed from a barn for the purpose of repair, pass by a conveyance of the barn as part and parcel of the realty. Wadleigh v. Janvrin,41 N.H. 503.

But in such cases, to divest a chattel of its character as personalty and make it a part of the realty, there must be an actual or constructive annexation to the realty with the intention of making it a permanent accession to the freehold, and an appropriation or adaptation to the use or purpose of that part of the realty with which it is connected. "In order to constitute a constructive annexation to the realty, the article in question must not only be appropriate, or adapted and accessory, to the fit and beneficial use of the principal thing, the realty, and not to a matter of a mere personal nature, but must also be such as goes to complete the building, machinery, etc., constituting the principal thing which is affixed to the land, and must be such as, if removed, would leave the principal thing incomplete and unfit for use, and would not itself alone be equally useful and adapted for general use elsewhere. In respect to all cases of constructive annexation, there exists both adaptation to the enjoyment of the land and localization in use, as obvious elements of distinction from mere chattels personal." Ewell Fixt. 21, 22, 34.

Tried by these tests the boat is no part of the realty. It is no part of the land, buildings, or cottage, or of "the property thereto belonging." There is no annexation to the realty, either actual or constructive. It is in no was adapted for use in connection with the land or buildings. It is not only not essential to the enjoyment of the estate, but the use of it is not even incidental to the use, occupation, or enjoyment of the cottage or land. It is no more a convenience to the owner or occupant of the cottage than it would be to any other person. It is a chattel merely, and as such is not included in the bequest to the defendant.

Judgment for the plaintiff.

BLODGETT, J., did not sit: the others concurred.