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1843.

The

HERTFORD

v.

Lord LOWTHER.

Secondly, where there is a gift of personal property in a given locality, choses in action, which have no Marquis of locality, will not pass, although the securities may be there situate the only exception is, that of Bank of England notes, which are considered money. In Chapman v. Hart (a) there was a gift of all the testator's "goods and chattels in his house and on board the Warwick" (a man-of-war). Lord Hardwicke said, "Undoubtedly no goods and chattels in the house can pass but such as were properly in possession, not choses in action, except Bank notes, which the Court considers as cash; for these words may certainly extend farther 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 (b) 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.

In Green v. Symonds (c) 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.

(a) 1 Ves. sen. 271. And see Belt's Supplement, 146.

(b) Amb. 68.

(c) 1 Bro. C. C. 129. n.

In

In Moore v. Moore (a) Lord Thurlow held that, under a bequest of "all in Suffolk to R. M.," a bond, which happened to be at the testator's house in Suffolk, did not pass. And in Brooke v. Turner (b), under a bequest, of "all the property over which the testatrix had a disposing power in and about her dwelling-house,” was held to pass Bank of England notes, but not country bank notes, or promissory notes. A bequest of "all my property, of whatever nature, &c. in Duke Street, except a bond of F. M.," was held not to pass a bond from G. C.; Fleming v. Brook. (c)

Mr. G. Turner and Mr. Tripp, contrà. This is purely a question of intention. The words "goods, chattels, &c.," are quite sufficient to carry the property in question, and there is no intention by the specific description of particular property to limit the operation of these general words. The particular enumeration of property was introduced, not for the purpose of diminishing the extent of gift, but from an anxiety that the legatee should take all property whatever at Milan; the words et cetera extend the gift to every species of property at that place.

The bequest is not confined to things ejusdem generis. In Kendall v. Kendall (d) it was held, that a bequest of "all monies, goods, chattels, clothing, &c., the testator's property which might remain after paying his funeral charges and debts," will pass the testator's interest in stock and money. And in Arnold v. Arnold (e) a bequest of "my wines and property in England" was held to pass the testator's property in England of every description,

(a) 1 B. C. C. 127.

(b) 7 Simons, 671.

(c) 1 Sch. & Lef. 318. And

see Collier v. Squire, 3 Russ. 467.

(d) 4 Russ. 360.
(e) 2 Myl. & K. 365.

1843.

The Marquis of HERTFORD

v.

Lord LOWTHER.

1843.

The Marquis of HERTFORD

v.

Lord LOWTHER.

description, including money in the funds and at his
bankers, debts, and arrears of pension, and that it was
not confined to property ejusdem generis with wines;
and in Parker v. Marchant (a) a balance at the bankers
was held to pass under the words "ready money."
Supposing, however, the operation of the general words
to be limited to property ejusdem generis, then these
certificates are of the same nature as the "
bankers, and stock in the Monte de Milano."

money at the

Secondly, the certificates, which of themselves give a title to the holder, have a locality; the legatee is entitled to those certificates, and having rightful possession of those documents, she will become entitled to the money payable on them. Here the legatee has a condition imposed on her of paying 3000l., and it does not appear whether the other property given by this codicil will be sufficient for that purpose; this therefore is a strong reason for extending the operation of the words of gift, if that be necessary. (b)

Mr. Kindersley in reply.

The MASTER of the ROLLS reserved his judgment.

Dec. 14.

The MASTER of the ROLLS.

After the arguments were concluded, I was requested to suspend my judgment, until the parties had obtained authenticated translations of the instruments in question.

Such translations have since been supplied to me; the documents appear to me to be evidences of ob

(a) 1 Y&C. (C. C.) 290., and 1 Phillips, 356.

ligations

(b) See the cases, 2 Jarman on Wills, 171.

ligations entered into by the governments established in Poland, Austria, and Naples respectively; and they appear to be so expressed, as to constitute the bearers. the persons entitled to receive, at future times, the interests and the capitals of the title to which the instruments respectively are the evidence. The Master has treated them as negotiable securities which pass by delivery.

The question is, whether they pass by the words of the bequest.

The Master has considered that they are comprehended within the true meaning of the words "goods and chattels," and that the extensive meaning of these words is not reduced by the effect of the words, "I may die possessed of at Milan or in Lombardy," which follow after the enumeration of many particulars which he has distinctly named.

From the words which are used, it appears to me so probable that the testator intended to give this lady all which he had at Milan, that, independently of authority, I should have concurred in the Master's opinion.

But in Green v. Symonds (a) Lord King held that a gift of all the testator's goods and moveables whatsoever in his study, except books and writing, did pass money and plate found there, but did not pass securities for money, they being choses in action.

In Lady Aylesbury's Case (b), Lord Hardwicke held, that a gift of the testator's house and all that should be in it at his death, though it passed cash and bank notes, did not pass promissory notes and securities, as they were evidence of title to things out of the house, and not to things in it.

(a) 1 Bro. C. C. 129. n.

(b) Ambler, 68., 11 Ves. 662.

In

1843.

The Marquis of HERTFORD

v.

Lord LOWTHER.

1843.

In Chapman v. Hart (a) the same Judge declared, that no securities for money, nor other choses in action, Marquis of passed by a bequest of all goods and chattels in the

The

HERTFORD

V.

Lord LOWTHER.

testator's house, or on board the ship Warwick. Bank notes might pass, because the Court considered them as cash.

In Moore v. Moore (b) Lord Thurlow (as Lord Redesdale says on a view of all preceding cases on the subject) decided, that a legacy of "all the testator's goods and chattels in Suffolk," did not pass a bond which was in the testator's house there.

In the case of Fleming v. Brook (c), Lord Redesdale held, that bonds and bankers' receipts did not pass by a gift of "all the testator's property, of whatever nature or kind the same might be" in a particular house.

And in Brooke v. Turner (d), the Vice-Chancellor of England held, that country bank notes, promissory notes, and accountable memoranda, did not pass, under the description of "property of every sort and kind, over which the testatrix had a disposing power, in or about a dwelling-house."

It does not appear to me that the effect of these authorities is altered by the cases of Kendall v. Kendall (e), and Arnold v. Arnold (g), which were cited. In Kendall v. Kendall the gift was not confined to property in any particular place; and in Arnold v. Arnold the gift was of all wines and property in England, and the particulars claimed by the legatees were found to be the testator's property in England at the time of his decease.

(a) 1 Ves. sen. 271.
(b) 1 Bro. C. C. 127.
(c) 1 Sch. & Lefroy, 318.

(d) 7 Sim. 671.
(e) 4 Russ. 360.
(g) 2 Myl. & K. 365.

In

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