CHAPTER IV. Rights of Specific Legatees under the Words of the Will, and against the EXECUTORS; and the Rights of Specific Legatees of Goods and Chattels in remainder against Specific Legatees for life. THE subjects of the present Chapter will be discussed under the following arrangement: SECT. I. What personal estate will pass to specific legatees under the words of the will. 1.—Considering when the words refer to the date of the will, and when to the death of the testator. 2. What will pass by the words goods, household goods, personal estate, property, and things when referred to as being in a particular place; and 3. When the words goods, &c. will be restrained to such only as are ejusdem generis with those specified in the will, and when not. 4.-Construction of the words household furniture, household stuff, chattels, live and dead stock, stock upon a farm, effects, utensils, money, security for money, medals, debts, linen and clothes, farm and plate. SECT. II. What will pass a specific bequest of personal estate in the Colonies. SECT. III. Of the title of a specific legatee to an excess of the fund whether of capital or profits accrued between the date of the will and the death of the testator. SECT. IV. Of mistakes in regard to the subject specifically bequeathed. SECT. V. 1. In the description of the fund, and the admissibility of extrinsic evidence. 2.--Of the admission of such evidence to show a testator's intention by explaining the sense in which he used the words of the bequest ;-—and 3.-The consequences of mistakes in the calculation of the specific funds when they are wholly given to one person, and when to several persons in fractional parts. The rights of specific legatees against the execu tors. SECT. VI. The rights of specific legatees of goods and chattels in remainder against the preceding tenants for life. 1.-When an inventory or security will be required ;— 2.-The rights where a tenant for life of a lease surren- SECT. I. What personal Estate will belong to the specific Legatees under the words of the Will. 1. In considering this subject, there are two periods of time to be noticed; the one the date of the will, and the other the death of the testator; for if a testator show an intention to dispose of such goods or personal estate as belonged to him at a particular place when he made his will, as by the terms "of all such part of my personal estate as is now in my house at A." property afterwards brought into that house will not pass to the legatee. Accordingly, in Dormer v. Burnet, (a) A. bequeathed to B. her house in C., and by a codicil, "all the goods she brought into the house, except what are mentioned in a schedule." There was no schedule found; and the Court held the exception void, but the devise good; and that none of the goods passed, save those which were in the house at the time the codicil was made. In unison with the last case are the observations of Lord Eldon, in delivering his judgment in Howe v. The Earl of Dartmouth,(b) before stated. So also in the Attorney General v. Bury.(c) A. devised all the arrears now due and unjustly detained from him by B. to be employed in a certain charity. The question was, whether arrears which incurred after the date of the will should pass? And the Lord Keeper decided in the negative, because the devise was confined to the arrears due when the will was made. But if the bequest be general, as "of all the testator's goods, &c. in a particular house or place," or "which he shall have or leave there at the time of his death;" whatever personal chattels(d) are found there at that period will be the property of the legatee. Thus A. devised "all his personal estate at a place called W." to his wife B. And as to what passed by this bequest, the Chancellor declared, that under those general words, whatever personal estate the testator had at the place described at the time of his death passed to the legatee; and that the legacy was to have relation to that period, and not to the date of the will.(e) So also in Gayre v. Gayre,(ƒ) B. devised his house in C. and all his goods, &c. therein to D. for life, &c. The Lord Keeper decreed, that the goods and furniture in the house at the death of the testator passed to D. But to confine the words of the bequest to the making of the will, the expressions must unequivocally refer to the property which the testator then had; otherwise they will not be allowed that effect. If then a testator were to bequeath to B. his library now in the custody of C.; since the word now is more applicable to the description of where the library was than to limiting the legacy to identical books in C.'s possession, books afterwards added to the library will pass to the legatee. In illustration of this, B. bequeathed in these words: "I devise my library of books now (a) Cited in Downing v. Townsend, Ambl. 281. (c) 1 Eq. Ca. Abr. 200. pl. 12. (b) 7 Ves. 147. (d) 3 P. Will. 335. (ƒ) 2 Vern. 538. and see Masters v. Masters, 1 P. Will, 421-424. Green v. Symonds, 1 Bro. C. C. 129, in notis. in the custody of C. to All Souls College in Oxford;" and he gave to the same college 4000l. more to augment their library. B. afterwards bought several valuable books, which were placed in the library. And it was the question, whether those books passed to the college? The then Master of the Rolls determined in the affirmative, upon the construction of the word now; his Honour being of opinion, that now did not relate to the books which were in the library at the date of the will; but that it denoted where the library was, and might have been intended to distinguish that particular library from any other belonging to the testator.(g) It is, however, in general essential, (h) that the goods intended for the specific legatee should be actually in the house at the death of the testator; for as none but such as are then in that situation answer the terms of the bequest, none other can pass to the legatee, under whatever circumstances evincing the testator's intention to have placed particular articles in the house, which never were there, if he had not been prevented by death.(i) Accordingly, in Grandison v. Pitt,(k) A. bequeathed to B. his goods and furniture in and at his house at C. and belonging to C. He had ordered some furniture for that house, which was not carried there before his death; and it was determined, on the authority of the case of the Duke of Beaufort and Lord Dundonald, (1) that such furniture did not pass. The period being settled to which the specific bequest refers, the next consideration is the species of property which will be comprehended under the expressions used by the testator. We shall commence our inquiry with the effect of the word "goods;" when the bequest is of goods, generally, and also when that term is controlled by confining the legacy to such goods as are in, or at, a particular place, and therefore specific. 2. The word "goods" is nomen generalissimum, and when construed in the abstract, the term will embrace all the personal estate of a testator, as bonds, notes, money, plate, furniture, &c.(m) Such is its effect by the canon law, as well as by our own, which seems to have adopted the former. By the civil law bona mobilia, and bona immobilia were the membra dividentia of all estates; so that as bona immobilia were land, bona mobilia included all personal property.(n) But when a testator, instead of bequeathing his goods, generally, restricts the import of that word, by limiting its effect to those in a particular situation, as by specifically bequeathing "all his goods in the house at A." In such and the like instances, since the goods given are connected with a subject in its nature showing the sense in which the term was used by the testator, viz. restricted to such articles and things as were in possession and not in action, those only savouring of locality, will pass to the legatee. Such as furni(g) All Soul's College v. Coddrington, 1 P. Will. 597. (h) See chap. V. sect. 1. sub-sect, 3. See Lord Shaftesbury v. Lady Shaftesbury, 2 Vern. 747, and Lord Eldon's observations, 11 Ves. 662, (k) 2 Vern. 740. ed. by Raithby, in a note. (4) 2 Vern. 739. and see Heseltine v. Heseltine, 3 Madd. 276. (m) See 1 Atk. 180. 182. 3 Atk. 62. Moore v. Moore, 1 Bro. C, C. 128. (n) Swinb. pt. 7. sect. 10. Anson, 1 P. Will, 267. ture not attached to the freehold,(o) linen, plate, money, and bank notes, which are considered money, but not bonds, mortgages, receipts, &c. which have no locality in the sense required in these cases, as will appear from the authorities which we shall proceed to state. Thus in Chapman v. Hart,(p) A. bequeathed to the plaintiff in consideration of her care of him during his sickness at Antigua, 500l. and all his goods and chattels in his house, and on board the Warwick man of war, to be by her disposed of to such of his nephews and nieces as she should find most friendly to her, to be kept as memoranda of him. And Lord Hardwicke said " undoubtedly no goods and chattels can pass but such as were property in possession, not choses in action, except bank notes, which the Court considers as cash; for these words may certainly extend further than to bare furniture, and if any ready money in the house (if not an extraordinary sum and just received) that would pass. In the Countess of Aylesbury's case,(g) I was of opinion, that by devise of all things in a house, money and bank notes, passed to the testator's wife, and that the testator meant to consider the notes as cash, but bonds do not pass, not admitting of a locality, except as to the probate of wills, &c." Again In Green v. Symonds,(r) B. bequeathed to C. all his goods, &c. in his study, except his books and writings. He gave to D. all his books at his chambers in the Temple. At the testator's death there were in his study, a considerable sum of ready money, securities for money and plate; but he had removed the books into the country. One of the questions was, whether C. should take the money, securities, &c. which were in the study, or the furniture only. And the Lord Chancellor held, the money and plate to pass, but not the securities for money, as they were choses in action. The case of Moore v. Moore,(s) determined by Lord Thurlow, is a leading authority upon the present question, viz. that bonds and other choses in action will not pass to a specific legatee by the words "goods and chattels." In that case, the testator left a testamentary paper which was established in the ecclesiastical court, and by which he bequeathed as follows: "I give all in Suffolk to R. Moore and heirs. I give to R. Moore all my goods and chattels in Suffolk." The testator had goods and chattels in Suffolk, and also in other counties; and in a drawer at his house in Suffolk, a bond was found which the plaintiff claimed specifically as goods and chattels in Suffolk; and the question was, whether he was entitled to it as part of his specific legacy? And Lord Thurlow said, the question was, whether from the context the bond could pass? As to the point of construction, said his Lordship, the Court construed legacies according to the canon, not the common law. It was argued, that bona included all credits, as well as chattels at common law, and that the words "all goods and chattels" would pass bonds and all credits. As to that, Lord Thurlow observed, that the true point was, whether the context would (0) 3 P. Will. 335. (p) 1 Ves. sen. 271. 68. Corrected by Lord Eldon, 11 Ves. 662. (8) Ibid. 127. (q) Popham v. Aylesbury, Amb. 1 Bro. C. C. 129. in notis. qualify the meaning of goods and chattels? That whenever words were used in an instrument, it was a good rule to say they shall be construed according to their legal sense. In order to construe them otherwise, there must be something to show that they are used in a less technical meaning; a fact to be shown by the person claiming under the particular sense; and his Lordship proceeded to the following effect: "First, it has been argued, that the words do not mean credits; I think they do: secondly, that the words, when local, do not imply them; and, with respect to specialties, that they have no locality; the question is, whether this peculiar kind of credits has that sort of locality which was within the idea of the testator? This is not a solemn codicil, and requires therefore a more favourable construction. The sentences are mangled and imperfect. It is contended that this sort of credits has locality, because the law has made it bona notabilia. But it is doubtful whether the Court christian having thought it sufficiently local for that purpose, is enough to make it local as to this. If the question hung more in doubt than it does, I should be obliged to follow Lord Hardwicke's case.(t) The judgment there goes clearly to this case. He has compared bank notes to money. Choses in action have no locality. Bonds have no more locality than other choses in action, otherwise than by drawing the jurisdiction of the ecclesiastical court; and the judgment in that case must prevail. In this also it has weight, that the house was given to the same person. Removal of goods for a necessary purpose, is not an ademption of a specific legacy; but would you follow bonds and judgments in the same manner? It would be too much to argue it in that way. The authority of that case must go so far as to include bonds with other choses in action, as to that want of locality." Bill of R. Moore dismissed. The several cases which have been adduced, concur in establishing that bank notes will pass to the specific legatee under a bequest of all goods in the testator's house. The reason is, that they are considered money, and not merely as representing money. This being so, it is an apparent consequence of the decisions made by the courts of law, that Exchequer notes, promissory notes payable to bearer, Exchequer bills and bills of exchange indorsed in blank, are not to be considered choses in action, but money of the persons in whose possession they are ;(u) and that those instruments possessing equally with bank notes, the locality required, will pass to the legatee under the terms of the above bequest. The term "household goods" is frequently adopted by testators. By that word, every thing of a permanent nature, i. e. articles of household which are not consumed in their enjoyment, that were used in, or purchased, or otherwise acquired by a testator for his house, will pass to the legatee, as will appear from the cases afterwards produced. But if a testator, having goods or household goods of his own and others, used in his trade, specifically bequeath his household goods, or goods in his house in which there are also goods in his business, the latter will not pass by those words, but it will be presumed that (t) Chapman v. Hart, supra, p. 190. (u) See Collins v. Martin, 1 Bos. & Pull. 648. 651. and Wookey v. Pole, 4 Barn. & Aíd. 1. Also see Chap. I. p. 36. |