The Orphans Legacy, Part 3 · Chapter 20
CHAP. XX. Caſes in the Law touching Legacies of Chattels Perſonal.
1. CHattels Perſonal may be bequeathed to one for life, and afterwards to another; in which caſe the firſt hath only the uſe or occupation, the other hath only the Propriety thereof. So that if one Will that A. B. ſhall enjoy the uſe of his Houſholdſtuff during his life, and after that it ſhall remain to J. M. This is a good Deviſe thereof to J. M. a37. H. 6. 30. Littl. Broo. Sect. 388. 314. 209.But if the thing it ſelf be bequeathed to the firſt of them, then it is otherwiſe; for the gift of a Chattel Perſonal though but for one hour, is the gift thereof for ever; bHill. 9. Car. B. R. the Lady Davyes Caſe.Provided, the Teſtator make it Abſolute, not Conditional.
2. Chattels Perſonal do paſs under the legal Notion of Moveables, as Chattels Real do under that of Immoveables; of both which the Law makes a Diſtinction into Creatures Living, and Things inanimate; albeit of the living Chattels Real there can but very few inſtances be given; Such was Wardſhip in reſpect of the Tenure of Land; As alſo Villenage for years; or that right which the Lord had in the Villain only for a Term; who reſembled him whom the Civil Law terms Aſcriptitius Glebae, or one in perpetual Obligation to the Plow on ſome certain Lands. The Real Chattels Inanimate chiefly conſiſt in Houſes, or Lands, or the iſſues thereof, as by Leaſe for years, or by Extent upon Judgments, Statutes, or Recognizances; Or if the Teſtator had a Term of years in certain Advowſons, Tythes, Profits of Fairs, Markets, or Court Leets, the Intereſt is a Real Chattel among the things inanimate; likewiſe a Preſentation to a Church, upon the next avoidance, and before it come to be void, is a Real Chattel. cOff. Exec. cap. 5.But of this, and Chattels Perſonal, with their reſpective Individuals, the Reader may have a more exact Deſcription, if he hath a retroſpect to Cap. 6. Par. 3. whereunto he is referred for clearer ſatisfaction.
3. A. B. having two Brothers and one Son, makes his Son his Executor, and in his Will ſaith, That he would have his Son let the ſaid two Brothers, (who are the Sons Uncles) have all the goods he hath in D. and M. or elſewhere, ſaying withall, That all theſe things he doth leave them for this Reaſon, becauſe he would not that his Son ſhould have any Difference or Controverſie with them. In this caſe and by this Deviſe A. B. ſeems to leave his two Brothers only what was in common between him and them, and no more; This interpretation being grounded on the Reaſon annexed at the cloſe of the Teſtators words, where he ſaith [Becauſe his Son ſhould have no difference or Controverſie with them] by which Reaſon he ſeems to have a proſpect of Differences like to ariſe between him and them by occaſion of ſome goods in common between them (as is uſual in caſes of ſuch Community) And thence ſeems by ſuch words added to the Bequeſt to prevent ſuch probable Differences, not intending to include within that Legacy ſuch Goods as were not like to cauſe any Difference between them.dl. cum pater. §. Dulciſſimis. & gloſ. ibid. de Leg. 2.
4. The firſt Declaration of the Teſtators mind Derogatory to the ſecond, prevails againſt that ſecond, unleſs thereby the firſt be ſpecially revoked; And therefore if a Teſtator in the beginning of his Teſtament, ſaith, That to whom I ſhall bequeath twice, I would have it due but once; and then gives a Horſe to A. B. After in another part of his Teſtament gives his Books to A. B. And after that towards the end of his Teſtament ſaith, it repenteth me that I declared my ſelf in that manner in the former part of my Teſtament, for I incline that A. B. ſhould have my ſaid Books and the Horſe; In this caſe the Legatary ſhall have them both, notwithſtanding what the Teſtator ſaid in the former part of his Teſtament; for a Teſtator cannot in his Will impoſe ſuch a Law on himſelf, as from which by his Will he cannot recede; becauſe only that which is indeed his Will, is his Law, and a Law unto it ſelf, and that alone ſhall ſtand.el. Si quis in principio. & gloſs. ibid. de Legat. 3.
5. If a man doth Deviſe to A. B. all that he doth poſſeſs in London; by ſuch general words ſhall paſs all that he hath in the Suburbs, as well as in the City; But his Books of Accompt or Caſh in his Cheſts, which he hath either in the City or Suburbs, do not paſs by ſuch general words in a Will.fl. uxorem. §. legaverat. & gloſs. ibid. de Legat. 3.
6. If I bequeath 100 Books, the Legatary ſhall have 100 Volumes of Books, not computing the ſeveral Books that may be in one Volume, as ſo many of the 100. And if I bequeath him my Study or Library, ſhe ſhall have only the Books, not the place where they are, nor other things that may be there.gl. librorum. & gloſ. ibid. de Legat. 3.
7. If a man Deviſe his Houſe to A. B. with all the things therein when he ſhall dye; ſuch things as are there only by chance, and did not uſe or were wont to be there, do not paſs by that Deviſe; yet ſuch things ſhall paſs as only by ſome accident were not found there, but uſed to be there; But Money found there, which not long before was received from Debtors, and intended to be again Lent out, doth not paſs by ſuch Deviſe.hl. ſi ita Legatum. & gloſs. ib. de Leg. 3. Yet if a Bequeathed Ship be after ſo often Repaired, that there remains nothing of the ſame Ship but the Keel, the Legacy is good. l. quod in rer. nat. §. ult. ff. de Leg. 1.
8. If I bequeath Materials fit to make a Ship, and after do build a Ship therewith; the Ship doth not paſs by that Deviſe. Or if I bequeath a Ship, and after do rip abroad that Ship, the Legatary ſhall not have the Materials thereof; yea though another Ship be afterwards built of the ſame Materials, he ſhall not have it. Yet if I bequeath a Wedge of Silver, wherewith any Veſſel is after made, the Legatary ſhall have it, ſo as the form or faſhioning thereof be not of more value or coſt more, than the Silver it ſelf is worth.il. lana. & gloſs. ibid. de Legat. 3.
9. A Teſtator had ſix Marble Statues, and a great quantity of other Marble; he Deviſeth two of his Marble Statues, and all his other Marble to A. B. whether by this Deviſe may the Legatary claim the Six Marble Statues? It is anſwered Negatively, he can have but two Marble Statues; becauſe when the Teſtator gave him the Statues ſo ſpecially and Numerically both, he ſeemed not to intend the Legatary ſhould have the other four by that Deviſe; If ſo, he would not have ſpecified in two, had he intended ſix, kl. 1. de aur. & argent. legat. & l legata. de Supellect. legat. & l. haeres meus. §. duae. & gloſ. ib. de Legat. 3.but, rather in all probability would have mention'd ſix in ſtead of two; but if the number, or the Names of the Statues bequeathed be not ſpecified in the Legacy, they will all ſeem to paſs under the Genus of Marble ex abundanti.ldict. l. legata & Cuiac. in dict. l. in toto.
10. A man having two Horſes, doth in his Will ſay, I give to A. B. the two Horſes which I ſhall have when I dye; after the Teſtator ſells his two Horſes, and at his death is found to have only two Mares. In this caſe the Legatary ſhall have the two Mares; becauſe in conſtruction of Law the Feminine in ſuch caſes is compris'd in the Maſculine.ml qui duos. & gloſs. ibid. de Legat. 3.
11. If a man indebted 20 l. hath Goods worth 100 l. and gives to his Wife the one half of all his Goods to be equally divided between her and his Executors; In this caſe the Wife ſhall have the one half of all the Eſtate perſonal, and that without any defalcation.nGoldsb. 149. pl. 74.
12. Under the notion of Houſholdſtuff, is not to be underſtood in any Will or Bequeſt, any Apparel, Books, Weapons, Tooles, for Artificers, Cattel, Victuals, Corn in the Barn or Granary, Waynes, Carts, Plowgear, or Veſſels fixed to the Freehold. oVid Swinb. par. 7. § 10. verſ. ſin. §.As for Plate, it is the common and faireſt Expoſition to underſtand only ſo much thereof within the Notion of Houſholdſtuff, as the Teſtator himſelf in his life time did ſo underſtand, and as much thereof as himſelf did eſteem rather as Utenſils than Ornaments, and accordingly made uſe thereof rather for the daily and ordinary ſervice of his Houſe, then for Ornament, Pomp or delicacy. And as touching Coaches, whether they are within the Notion of Houſholdſtuff or not, I ſuppoſe the Reader will not eaſily be perſwaded to joyn with thoſe in their opinion, who hold it in the Affirmitive; pSwinb. ubi ſupra.unleſs he will alſo allow the Plow and the Cart (which are of more Domeſtick uſe and ſervice than Coaches) to have the ſame Priviledge with the other.
13. A Teſtator may Bequeath the Corn growing on his ground at the Time of his death; yet if he be a Leſſee for Years, and ſowe the Land ſo ſhort a Time before the Expiration of his Leaſe, that the Corn cannot poſſibly be ripe when the Term Expires, and he die before ſuch Expiration of his Term; In this Caſe his Bequeſt of ſuch Corn is void, becauſe himſelf if he had lived, could not have Reaped it after his Term Expires.
14. If a Man Bequeath all his Sheep, neither the Rams nor the Lambs are compriſed therein; but if he Bequeath his Flock of Sheep, they are both therein compriſed. ql. Servis leg. de leg. 3.Or if he Bequeath 20. Sheep which he hath in his Flock, and which indeed is all his Flock, the Legatary ſhall have them all; becauſe by this he Bequeatheth his Flock of Sheep. rl. grege. de de Legat. 1. & gloſſ. ibid.Likewiſe if one Bequeath his Flock or his Heard to me, and the Teſtator living, ſome of the Flock or Heard die, and others put into their ſtead. In this Caſe the Legatary ſhall have them, becauſe it is the ſame Flock or Heard as formerly: But what if one of them die; in that Caſe and notwithſtanding ſuch diminution the Legatary ſhall have the 19. though it be not the Flock which the Teſtator Bequeathed. Likewiſe if 19. die, ſo that but one only remains, the Legatary ſhall have that one. Alſo if a Houſe be Deviſed, which is after burnt, the Legatary ſhall have the Ground whereon the Houſe ſtood.sl. ſi grege. de Legat. 1. & gloſſ. ibid.
15. A. B. Deviſeth his Horſe to me and thee, willing that each of us ſhould have a Horſe entirely; in this Caſe one of us ſhall have the Horſe, the other of us the value or Price of that Horſe. tl. ſi mihi de Legat. 1.and in Caſe (the Teſtator being dead.) thou after make me thy Executor, who was before thy Collegatary, I ſhall have the whole Legacy, that is, mine if I will, or thine if I will, but if I take by the one, I cannot claim the other alſo.ugloſſ. in dict. l.
16. A Teſtator Sick in London, there makes his Will, wherein he appoints his Executor to deliver the Horſes he had at Edenborough in Scotland to A. B. (then alſo at London with the Teſtator) the Third day next after his deceaſe, and dies. The Queſtion is, whether this Legacy be good or not? It ſeems not, becauſe of the diſtance of Place rendring the Performance of the Legacy impoſſible at the Time limited by the Teſtator. But the Anſwer is, the Legacy is good and poſſible, nor ought the diſtance of Place to prejudice the ſame, in regard the Teſtator might after the making of the Teſtament poſſibly live long enough to have the Horſes brought from Edenborough to London timely enough to have the Legacy performed by the Time limited by the Teſtator, wdict. L. ſi mihi.if there were nothing elſe to be ſaid in the Caſe, as indeed there is.
17. If the Teſtator ſaith, I give A. B. my Diamond-Ring which I believe is in my Cabinet; but in Truth is at that Time in the bottom of the Sea; his Executor is not obliged to pay the value thereof to the Legatary, nor to deliver it till it can be got out of the Sea, and then he ſhall be no leſs legally then miraculouſly obliged. xl. haeres. & gloſſ. ibid. de Legat. 3.or if a Teſtator Bequeath 20. Gallons of Canary out of ſuch a Hogſhead, and there be found but Ten Gallons in it, the Legacy is not invalid; for the Legatary ſhall have the Ten Gallons, but no more.yl. ſi quis ſervum. §. 2. de Legat. 2.
18. A Teſtator Gives and Bequeaths an Oxe to one, the Oxe dies before the day comes for the delivery of him to the Legatary; he ſhall have neither his Fleſh nor his Hide; otherwiſe if he had dyed after the day for the delivery thereof was come.zl. mortuo Bove. & gloſſ. ibid. de Legat. 2.
19. A Teſtator in his laſt Will and Teſtament ſaith: I Will that after my deceaſe my Executor hereafter named ſhall pay 50 l. per annum to my Wife, whilſt ſhe ſhall be with my Son in London. The Son went from his Mother, yet ſtaid in London, but not with his Mother. The Queſtion is, whether the 50 l. per annum be due to the Mother? It is Reſolved Affirmatively: But if the Son had gone out of London, and the Mother might have followed him, but did not, but continued ſtill in London; the Legacy would not be due to her, ſave only for that Year wherein the Teſtator died; which ſhall be due, albeit in that Year ſhe continued not with the Son above one day: But if the Mother could not follow the Son when he went out of London, nor can otherwiſe be duly charged-with any neglect, wherefore ſhe continued not with her Son, the Legacy of 50 l. per annum ſhall be due to her. The Reaſon of the Premiſes is, becauſe the ſaid words [Whilſt ſhe ſhall he with my Son in London] hath the force of a Condition. al. qui quatuor. §. uxori. & gloſſ. ibid. de Legat. 3.In like manner if a Teſtator Bequeath any thing to A. B. if he ſhall dwell in the City with his Son, it is not required that the Legatary ſhall dwell in the ſame Houſe with his Son; but if there be no mention made of any Place, as if the Teſtator ſhould ſay [if he dwell with my Son] the Condition is not fulfilled by the Legatary, unleſs he dwell in the ſame Houſe with the Teſtators Son.bgloſſ. min. ibid.
20. If a Teſtator enjoyn his Executors to pay unto A. B. the Sum of Ten Pounds per annum, and he live Six Years and Four Months, the Executors of A. B. ſhall receive Ten Pounds for the whole Seventh Year; becauſe ſuch an Annuity is due in the very beginning of every Year, where no certain Time of Payment is ſet by the Teſtator.
Not whether Jewels be Chattels, but what ſhall paſs under the Notion of Jewels is the Queſtion. For the Caſe was, the Earl of Northumberland Deviſed by his Will his Jewels to his Wife, and dyed poſſeſſed of a Collar of S's, and of a Garter of Gold, and of a Button annexed to his Bonnet, and alſo of many other Buttons of Gold and Precious Stones annexed to his Robes, and of many other Chains, Bracelets, and Rings of Gold and Precious Stones. The Queſtion was, whether all theſe would 26. Eliz. E. of Northumb. Caſe. Referr'd to Wray and Anderſon. vid. Hughs Abr. verb. probat. of Wills and Teſtaments.paſs by the Deviſe under the Name of Jewels. It was Reſolved by the Juſtices, That the Garter and Collar of S's did not paſs, becauſe they were not properly Jewels, but Enſigns of Honour and State; and that the Buckle of his Bonnet, and the Button did not paſs, becauſe they are annexed to his Robes, and were no Jewels. But for the other Chains, Bracelets, and Jewels, they paſſed by virtue of the ſaid Will.