1843. The Marquis of Hertford v. Lord Lowther. 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. [*5] *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, contra.-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 cætera 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 moneys, 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 [*6] *description, including money in the funds and at his bankers, debts, and arrears of pension, and that it was not (a) 1 B. C. C. 127. (b) 7 Simons, 671. (d) 4 Russ. 360. (c) 1 Sch. & Lef. 318. And see Collier v. Squire, 3 Russ. 467. 1843. The Marquis of Hertford v. Lord Lowther. 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 " money at the bankers, and stock in the Monte de Milano." 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 30007., 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 *obligations [*7] 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 (a) 1 Y. & C. (C. C.) 290, and 1 Phillips, 356. 1843.-The Marquis of Hertford v. Lord Lowther. 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. [*8] *In Chapman v. Hart(c) the same judge declared, that no securities for money, nor other choses in action, passed by a bequest of all goods and chattels in the testator's house, or on board the ship Warwick. Bank notes might pass, because the court considered them as cash. In Moore v. Moore(d) 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, (e) 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,(g) the Vice-Chancellor of England held, that country bank notes, promissory notes, and accountable memoranda, did not pass, under the description of "property (a) 1 Bro. C. C. 129, n. (b) Ambler, 68; 11 Ves. 662. (d) 1 Bro. C. C. 127. (e) 1 Sch. & Lefroy, 318. 1843. The Marquis of Hertford v. Lord Lowther. 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,(a) and Arnold v. Arnold, (b) 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. *In the cases to which I have referred, the securities [*9] were held not to be property in the places where the securities were, but choses in action and evidences of property existing elsewhere; and the distinction attempted to be made in this case, between securities which pass by delivery and those which require something more than delivery, has not been observed. Lord Eldon(c) said, that he did not know why, in these cases, bank notes were considered as cash, for he thought them just in the same situation as promissory notes and securities, which were the evidences of title to things out of the place. Perhaps the reason might be found, in the common habit of men to speak of bank notes as cash, and the manifest defeat of their testamentary intentions, which would be the effect of the court not so considering them; but be this as it may, I consider myself bound by authority, and that choses in action do not pass under the words "goods and chattels" in a particular locality. I do not think that the securities can be considered as money or cash, and the words "et cætera" which was relied on in argument, can only be extended to things which the testator was possessed of at Milan, or in Lombardy,[1] and the authorities de (a) 4 Russ. 360. (b) 2 Myl. & K. 365. (c) 11 Ves. 662. [1] That general words after an enumeration of particulars, are ordinarily to be confined to things ejusdem generis, see Parker v. Marchant, 1 Yo. & Coll. C. C. 290; S. C. 2 Yo. & Coll. C. C. 279, 282. A testatrix devises her house in Camdenplace, and "all therein" to M. for life; "at her death I give and bequeath the house, &c. &c. to my nephew T. and his heirs." After the death of M., T. is entitled to all the chattels, which were in the house at the testatrix's death, except the consumable articles. Twining v. Powell, 2 Collyer, 262. To this case the reporter, p. 266, has appended the following note: "As to the force of the word et 1843.-The Marquis of Hertford v. Lord Lowther. termine that, in such cases, choses in action (except bank notes) are not considered as having the locality of the places where the securities are. Being of opinion that, in that sense, the certificates and bordereaux are choses in action-evidences of title to property elsewhere—I think that they did not pass by the codicil, and that the exception to the master's report must be allowed.[2] NOTE. The parties appealed to the Lord Chancellor.[3] cætera in a will, see Steignes v. Steignes, Moseley, 296; Kendall v. Kendall, 4 Russ. 360; other things,' Trafford v. Berrige, 1 Eq. Ca. Abr. 201, pl. 14; other effects,' Hotham v. Sutton, 15 Ves. 319; 'other goods, chattels and effects,' Parker v. Marchant, 1 Yo. & Coll. C. C. 290; all things not before bequeathed,' Cook v. Oakley, 1 P. W. 302; 'every thing else at my house,' Boon v. Cornforth, 2 Ves. sen. 279." [2] Where the testator bequeathed "all the rest, residue, and remainder of the moneys belonging to his estate, at the time of his decease," it was held that the word moneys must be understood, in both its legal and popular sense, to mean gold or silver, or the lawful currency of the country, or bank notes, where they are known and used in the market as cash, or money deposited in bank for safe keeping; and not to comprehend promissory notes, bonds and mortgages, or other securities; there being nothing in the will itself, to show that the testator intended to use the word in that extended sense. Mann v. Mann, 1 Johns. Ch. Rep. 231. S. C. affirmed on appeal, 14 Johns. Rep. 1. The word moneys is of no more extensive signification than money. Mann v. Mann, 14 Johns. Rep. 12. Stock will not pass under the designation of money, unless such an intention can be collected from the context of the will. Gosdell v. Dotterill, 1 Myl. & K. 56. Kendall v Kendall, 4 Russ. 360. Rogers v. Thomas, 2 Keen, 8. Dowsan v. Gaskoin, id. 14. Gaffney v. Hevey, 1 Dru. & Walsh, 12. Willis v. Plasket, 4 Beav. 208. Where a testator gives to one person" all his moneys in hand;" and to another, "all his moneys out on securities," the balance at his banker's will pass as money on hand. Vaisey v. Reynolds, 5 Russ. 12. So, a bequest of ready money. Parker v. Marchant, 1 Phillips, 356. S. C. 1 Yo. & Coll. C. C. 290. So, dividends of stock due at the time of the testator's death, were held to pass as ready money. Fryer v. Ranken, 11 Sim. 55. See further as to what will pass as money, Benson v. Whittam, 2 Sim. 493. [3] Affirmed by the Lord Chancellor on the 20th December, 1845. |