Brooke says, that the best thing of every sort may be an heirloom—such as the best bed, the best table, the best pot or pan.
Coke says, that heirlooms are so by custom, and not by law.
Spelman says, in defining an heirloom, that it may be “Omne utensil robustius;” which would exclude a necklace.
In the Termes de Ley, it is defined as “Ascun parcel des ustensiles.”
We are told in “Coke upon Littleton,” that Crown jewels are heirlooms, which decision—as far as it goes—denies the right to other jewels.
Certain chattels may undoubtedly be held and claimed as being in the nature of heirlooms—as swords, pennons of honour, garter and collar of S.S. See case of the Earl of Northumberland; and that of the Pusey horn—Pusey v. Pusey. The journals of the House of Lords, delivered officially to peers, may be so claimed. See Upton v. Lord Ferrers.
A devisor may clearly devise or limit the possession of chattels, making them inalienable by devisees in succession. But in such cases they will become the absolute possession of the first person seized in tail—even though an infant, and in case of death without will, would go to the Exors. Such arrangement, therefore, can only hold good for lives in existence and for 21 years afterwards. Chattels so secured would not be heirlooms. See Carr v. Lord Errol, 14 Vesey, and Rowland v. Morgan.
Lord Eldon remarks, that such chattels held in families are “rather favourites of the court.” This was in the Ormonde case. Executors, therefore, even when setting aside any claim as for heirlooms, ought not to apply such property in payment of debts unless obliged.
The law allows of claims for paraphernalia for widows, and, having adjusted such claims, seems to show that the claim may be limited.
If a man deliver cloth to his wife, and die, she shall have it, though she had not fashioned it into the garment intended.
Pearls and jewels, even though only worn on state occasions, may go to the widow as paraphernalia—but with a limit. In the case of Lady Douglas, she being the daughter of an Irish Earl and widow of the King’s Sergeant (temp. Car. I), it was held that £370 was not too much, and she was allowed a diamond and a pearl chain to that value.
In 1674, Lord Keeper Finch declared that he would never allow paraphernalia, except to the widow of a nobleman.
But in 1721 Lord Macclesfield gave Mistress Tipping paraphernalia to the value of £200—whether so persuaded by law and precedent, or otherwise, may be uncertain.
Lord Talbot allowed a gold watch as paraphernalia.
Lord Hardwicke went much further, and decided that Mrs. Northey was entitled to wear jewels to the value of £3,000—saying that value made no difference; but seems to have limited the nature of her possession in the jewels by declaring her to be entitled to wear them only when full-dressed.
It is, I think, clear that the Eustace estate cannot claim the jewels as an heirloom. They are last mentioned, and, as far as I know, only mentioned as an heirloom in the will of the great-grandfather of the present baronet—if these be the diamonds then named by him. As such, he could not have devised them to the present claimant, as he died in 1820, and the present claimant is not yet two years old.
Whether the widow could claim them as paraphernalia is more doubtful. I do not know that Lord Hardwicke’s ruling would decide the case; but, if so, she would, I think, be debarred from selling, as he limits the use of jewels of lesser value than these to the wearing of them when full-dressed. The use being limited, possession with power of alienation cannot be intended.
The lady’s claim to them as a gift from her husband amounts to nothing. If they are not hers by will—and it seems that they are not so—she can only hold them as paraphernalia belonging to her station.
I presume it to be capable of proof that the diamonds were not in Scotland when Sir Florian made his will or when he died. The former fact might be used as tending to show his intention when the will was made. I understand that he did leave to his widow by will all the chattels in Portray Castle.
When Mr. Camperdown had thrice read this opinion, he sat in his chair an unhappy old man. It was undoubtedly the case that he had been a lawyer for upwards of forty years, and had always believed that any gentleman could make any article of value an heirloom in his family. The title-deeds of vast estates had been confided to his keeping, and he had had much to do with property of every kind; and now he was told that, in reference to property of a certain description—property which, by its nature, could only belong to such as they who were his clients—he had been long without any knowledge whatsoever. He had called this necklace an heirloom to John Eustace above a score of times; and now he was told by Mr. Dove not only that the necklace was not an heirloom, but that it couldn’t have been an heirloom. He was a man who trusted much in a barrister—as was natural with an attorney; but he was now almost inclined to doubt Mr. Dove. And he was hardly more at ease in regard
