The Orphans Legacy, Part 3 · Chapter 21
CHAP XXI. Of Legacies touching Goods in general, and what is to be underſtood under that Notion of Goods, and what by Moveables and Immoveables.
1. THat moveables fall under the general notion of Goods is out of queſtion, but whether Actions, and Rights of Action, and ſuits at Law depending fall under that notion, is a queſtion. The Affirmative is not only the moſt Received, but (as Orthodox) the beſt approved Opinion, al. bonorum. de verb. ſign. & Graſſ. §. Legat. q. 19. & mant. lib. 9. tit. 4. nu. 13. cum multis alijs.though much oppoſed by ſome of the Learned who will not admit ſuch Actions to paſs by way of Legacy under the Notion of Goods, ſave when the Bequeathing words are univerſal; as when the Teſtator ſaith, I Bequeath all my Goods, or I Bequeath a fourth part of all my Goods. bMatheac. li. 17. cap. 17. nu, 18. de Legat.Alleadging, that if the words be only general words, as when the Teſtator ſaith, [I Bequeath my Goods] In ſuch Caſe Actions and Titles to Actions are not comprehended therein, becauſe of the Pronoun [my] And that by the general word [Goods] is compriſed no more than the Teſtator hath in his actual Propriety jure Dominii. It is certain that if the Legacy of Goods in general be limited to any certain place, as when the Teſtator ſaith, [I bequeath the Goods which I have in my Houſe] In ſuch caſe Actions, becauſe they are not Circumſcriptible properly by this or that place, do not fall under that general notion of Goods. cDict. c. 17. v. 17. & Graſ. dict. q. 19. nu. 3.Or if a man bequeath his Dutch Goods, the Bonds or Debts owing to the Teſtator in Holland paſs not by a Legacy under that notion, albeit the Univerſal word [all] were added to it, dPinell. ad Rub. C. de bon. mater. part. 1. nu. 10.unleſs it were a Legacy given by a Merchant, who may rationally be preſumed to have in Holland Debts only owing to him.ePinell. ibid. nu. 12.
2. Such as aſſert Actions and Rights of Action to fall under the general notion of Goods, do yet deny them to fall under the notion of Moveables or Immoveables; for with much confidence it is affirmed, That by the Jus Commune Actions and Right of Actions are not Compriſed in a Legacy of Moveables or Immoveables; No, though the univerſal word [all] be added thereto; No, though the Note of univerſality ſhould be geminated in the words of the Legacy, as when the Teſtator ſaith, [I bequeath to A. B. all my Goods Moveable and Immoveable whereſoever they ſhall be found] And this is held even by thoſe who yet allow them to fall under the general notion of Goods. fGraſs. §. Legatum. ubi ſupra. & Pinel. ubi. part. 1. nu. 31.But this is contradicted by other of the Learned, who hold, That where the words of the Legacy are univerſal, in that caſe Actions and Rights of Action are compriſed within a Legacy of Moveables and Immoveables. gMolinae. ad Alex. lib. 6. Conſil. 68. & Dec. Conſ. 237. & 639. & Jo. Philippi. Reſp. 64.Now then, to reconcile the difference between the Diſſenting DD. in this point, the faireſt opinion is, that they are compriſed therein when the Teſtator geminates the words of univerſality, and abounds or ſuperabounds in his ſenſe that way, as when he ſays, [I give to A. B. all my Goods Moveable and Immoveable, and of what kind ſoever, or whereſoever they ſhall be found; or other words to ſuch moſt univerſal import.hAng. Matheac. lib. 17. cap. 17. nu. 16. de Legat.
3. All Corporeal Moveables inanimate which are only paſſive in their motion, as Books, Armour, Plate, Houſholdſtuff, and the like; and all Animals moving or active in their motion, as Horſes, Sheep, &c. fall under this general notion of Goods. iPeregr. art. 5 nu. 43. de ſidei commiſſ. & Dec. Conſ. 653. & l. moventium. de verb. ſign. & Al…i.But what if the Teſtator in his Will ſaith [I give unto my Wife all my Moveable Goods and Houſholdſtuff of my Houſe] whether ſhall the Wife have any of the Moveables other than ſuch as are of or belonging to his Houſe? Some are of opinion, that theſe words [of his Houſe] keep this general Legacy under a Reſtraint, and confine it to the Moveable Goods only which are in or of his Houſe; others (and they the moſt approved) hold the quite contrary, and ſay, that theſe words are ſet to enlarge the Legacy, and give the Legatary the greater latitude of right even to other of his Goods which are not in his Houſe. kMant. 9. tit. 3. nu. 17. & Mathaeus de Afflict. Deciſ. 106.And whereas ſome raiſe a double objection againſt it, 1. That where the Genus (as in this caſe) doth precede and the ſpeciès follow, (the Moveable Goods being the Genus, the Houſholdſtuff the Species) there and in ſuch caſe the former islimited and reſtrained by the latter.
2. That the Copulative [and] is here to be underſtood for [that is] Both which Objections are fairly anſwered thus; viz. The firſt Objection holds only where the Genus and Species are not diverſifyed in quality, but quite otherwiſe where they are or may be (as in this Caſe) of a diſtinct nature and quality; for in ſuch caſe both ſhall paſs by the Deviſe; as when a man bequeaths Nouriſhment and Phyſick to his Son. And the other Objection is as weak as the former, becauſe the Copulative [and] when it comes between two ſuch things as whereof the one may be included in the other (as it may in this caſe) is not to be underſtood for [that is] as in the Objection. lMathae. ibid.Indeed where a Teſtator doth add to a Deviſe of ſeveral things ſpecifically named ſomething in General, but limited to ſome certain Place; in ſuch caſe that local limitation will work a reſtriction upon all, though otherwiſe never ſo generally or univerſally bequeathed; As when he ſays, I give unto my Wife all the Houſhold-Furniture both Woollen and Linnen, and other Utenſils of my Houſe; In this caſe he ſhall be preſumed to intend her nothing of all this out of or not belonging to the Houſe.mMantie. ubi ſupra.
4. Whereas it is much controverted among the DD. (as appears by what was formerly ſaid) whether Actions and Right of Actions may be compriſed within the Notion of Moveables and Immoveables, albeit the Note of univerſality be added to the Legacy, yet it is here to be obſerved, that it is agreed on all hands, that in caſes of neceſſity they are compriſable within a Legacy of Moveables and Immoveables; As when the Teſtator makes A. B. the univerſal Legatary of all his Moveables, and C. D. the like of all his Immoveables; and theſe two accordingly and to the effects aforeſaid his Executors, and dyes. In ſuch caſe for the prevention of the Teſtators otherwiſe dying partly Teſtate and partly Inteſtate, they are admitted to be compriſed as aforeſaid.nRebuff. ad l. moventium. de verb. Sign. & Ranchin. par. 4. Concl. 23. & 24. & Graſs. §. legatum. quaeſt. 19. nu. 5.
5. By what was formerly ſaid it is apparent, That when a Teſtator doth bequeath his Moveables Indefinitely, all his Moveables are therein comprehended, albeit at the end of the Requeſt he ſhould thereunto add ſome particular thing ſpecifically, as when the Teſtator ſaith, I bequeath all my Moveable goods whatever and Houſholdſtuff of my Houſe to A. B.oTepat. tit. de Legat. in genere. cap. 4.
6. Among the Moveables are computed all ſuch things as may eaſily and without prejudice be removed from place to place; pl. Titius. de Acq. rer. dom.otherwiſe they fall under the notion of Immoveables, ql. 1. §. Si juſſerim. de acquirend. poſſeſſ.as all other things affixed to the Houſe, or (as we ſay) fix'd to the Freehold, or cannot well be removed without being damnified.rRebuff, ad dict. l. moventium. verſ. moventia. de verb. Sign.
7. An office, which a man hath for term of years, and may make Sale thereof, is computed among the Immoveables; sCharond. Reſp. lib. 5. cap. 40. aut. 41.yet it hath been adjudged, That a Regiſters-Office is compris'd within the Moveables.tPeleus. in Act. Forenſ. lib. 8. cap. 66.
8. Doves belonging to a Dove-houſe, as voluble as they are Naturally, yet are computed among the Immoveables legally, by reaſon of their Relation to the ſaid Place, until they are taken and kept under Confinement; And therefore till ſuch Capture they go to the Haeres Immobilium, as the Civil Law ſtiles the Heir, and not to the Executor. uMolin. ad Conſ. Pariſ. par. 1. §. 1. gloſ. 8. nu. 33.The like may be ſaid of Fiſh in the Pond, which are there for multiplication, breed, and encreaſe, and not for preſent uſe only. wMolin. ibid. nu. 18 & Graſs. §. legatum. q. 19. in fin.The Materials alſo of a Houſe pull'd down only with a deſign and intent therewith to rebuild the ſame, are computed among the Immoveables. xPapon. l. 17. tit. 4. arreſt. 6.yea a Ship though ſhe be never ſo ſwift a ſailer, yet for all her haſt is computed among the Immoveables.yBoerius. q. 177. & Strac. Tract. de Na. vib. part. 2. nu. 30. Whereas Money in a Deviſe is compris'd under the Notion of Moveables; underſtand it only when Moveables are generally bequeathed; not limiting them to any place. Sed ſi Mobilia alicujus loci, veluti Domus, vel in Domo, Relicta ſunt, non legatur pecunia quae Negotiationi ibi paratur. Mant. de Conject. ult. vol. lib. 9. tit. 3. nu. 3.
9. It is a Queſtion much controverted, whether Money be it never ſo Currant, be comprehended within a Legacy of Moveables; As if the Teſtator ſhould ſay, [I give thee all the Moveable Goods in my Houſe,] and there be found at his death 1000 l. in his cheſt; [If this were the Readers Caſe, no doubt but he would ſoon reſolve it in the Affirmative, and rather than fail, prove it ſyllogiſtically; whatever is Currant is Moveable, but Money is Currant, Ergo, &c.] But to be ſerious, for the better reſolution of that doubt, diſtinction muſt be had between Money hoarded up in a ſtrong Cheſt, for the ſafe keeping and preſervation thereof that it may not be thence ſoon removed; and Money found in a Cheſt, there put not for that end, but for common uſe and Service, and for daily and ordinary expences. In the former caſe it paſſeth not by a Deviſe of Moveables; in the latter it doth. zMenech. lib. 4. Preſ. 138. & Dec. Conſ, 381. nu. 4. & ibid. Molinae.And if it be doubtful for which of theſe ends it was there repoſited, the preſumption ſhall be for the Latter. aMenoch. ibid.Which holds true, albeit the Teſtator ſhould Deviſe the. Immoveables only Indefinitely, or deſign this Money only to be Let out at Intereſt. There is a great quarrel among the DD. (for this Engine of all miſchief is of a very Metalſome quality) whether Money actually out at Intereſt be within the notion of Moveables; ſome affirm it, bPinel. ad l. 1. de bon. mater. par. 2. nu. 44. & 45.others deny it, cGail. Obſ. li. 2. c. 11. nu. 7.compriſing it under the notion of Debts, which ſeems moſt rational; But Money in Caſh hath gain'd the more received opinion of its being comprehended within a Legacy of Moveables, albeit it happen to be much in quantity, dTheſ. Deciſ. 160. Mobilibus Legatis, Legata Pecunia. l. Si chorus. §. 1. & l. ſi fundus. ff. de Legat. 3. Dec. Conſ. 381. nu. 4. Etiam Cambiis tradita. Pinel. l. 1. in 2. part. nu. 44. de bon. Mater.or deſigned for a Purchaſe, ſo, as it be not for that end of a great quantity. But in ſuch Places where by common uſage of Speech Houſhold-goods are mainly and frequently meant or intended by the word Moveables, or if it be ſuch Money as was only deſigned by way of Trade for Merchandiſe, the Teſtator being alſo a Merchant, and the quantity be great; or if the Teſtator bequeath all his Moveables in ſuch a Houſe, excepting none at all; In all ſuch caſes Money, how acceptable ſoever it otherwiſe be, yet is not admiſſable to any comprehenſion within a Legacy of Moveables; eTheſ. ibid. & Mant. lib. 9. tit. 3. & Menoch. de Arbitr. l. 2. c. 489.Nor when any certain place is added to the Legacy, as if the Teſtator ſhould ſay, I give my Houſe to A. B. with all the things therein, none excepted. fMenoc. dict. Praeſ. 138. & Mant. l. 9. nu. 3, & Rench. Deciſ. par. 3. Concl. 280.No, Money found hid in the Wall of a Houſe, albeit the Teſtator ſhould ſay, [be the Moveables of what kind or Condition ſoever.]gibid.
10. And as for Debts, Bonds, and Obligations for Money owing, they are not within a Legacy of Moveables, be the place where they are added or not added to the Legacy, but make of themſelves, a third kind of Goods diſtinct, from the former; hPeregr. art. 5. nu. 43. & Alex. lib. 6. Conſil. 68. & Mantic. ubi Supra. cum Mult. aliis.unleſs in ſuch places where Cuſtom prevails, That Obligations touching things Moveable ſhall be computed among the Moveables, and touching things Immoveable bequeathed among the Immoveables.iJo Bacquet. du Dro…ct de Juſtice. cap. 21. nu. 84.
11. If the Teſtator ſaith, I give part of my Goods to A. B. he ſhall have the Moiety thereof; for by ſaying a Part, and not what Part, the one half is regularly to be underſtood; kGloſs. in l. ſi Titius. de Legat. 3. Pars pro toto by Figurative Law. Pars pro Medi…tate by Law indeed.yea, though the Teſtator himſelf had but the one half of the thing bequeathed, yet the Legatary ſhall have a Moiety of that half, and albeit the Teſtator ſhould ſay a certain part. libidem.But if he ſaith [any part, or what part ſoever] then be it never ſo little, the Legatary muſt therewith be content, and the Executor is diſcharg'd.
12. Laſtly, whatever was formerly ſaid touching that Litigious ſubject of Money, though by ſome formerly held as none of the Teſtators Goods or Chattels mKitchin. verb. catalla. fo. 32.either Moveable or Immoveable, yet now the Law underſtands Money better than to exclude it out of that notion, and the opinion is now as Currant as Money it ſelf, That it is part of the Moveable Goods of the Deceaſed; n§. & quia parum. Auth. de Nuptiis. & Rebuff. ubi ſupra. in L. Moventium. de verb. Sign. & Mantic. de Conject. ult. vol. lib. 9. tit. 3. nu. 2. Decii Conſ. 381. & 472.unleſs it be Money ariſing of the Sale of Lands, Tenements, Or Hereditaments appointed by the Teſtator in his laſt Will and Teſtament to be ſold, or Money comming of the Profits of the ſaid Land for any time to be taken; This Money is indeed by the Statutes of this Realm excluded from being reputed as any of the Goods or Chattels of the perſon ſo Deceaſed.oSt. an. 21. H. 8. cap. 5.
13. Alſo by a Bequeſt of Moveables will paſs the Induſtrial Fruits of the ground, or ſuch as are there ſown by the Induſtry of Man in expectation of a ſpeedy removal thence with increaſe; pDeciſ. Aven. 16. nu. 4. poſt, Paul. Caſtr. Conſ. 132. quem Decius & alii ſequuntur.But not the Natural Fruits, or ſuch as grow of their own accord without any great labour or coſt; for theſe are not reputed Moveables, unleſs they were ſeparated at the time of the Teſtators death. qDecii Conſ. 472.Thus Trees and Graſs together with the Land whereon they grow, deſcend to the Heir as parcel of the Freehold: But the Corn growing thereon belong to the Executor as part of the Teſtators Goods and Chattels.rPerh. tit. Deviſes. & Fulbeck. eod. tit. fo. 37, 38.
14. Where one bequeaths all his Goods and Chattels, or all his Corn, or all of any other thing; by ſuch bequeſt doth paſs not only All the Teſtator hath of that thing at the time of making his Teſtament, but alſo All he hath thereof at the time of his death; And not only the All thereof which he hath in Poſſeſſion, but alſo what thereof he hath not in Poſſeſſion but Expectation. But if he limit this All to a certain place, or as to or in the occupation of ſome certain perſon, then no more will paſs: by ſuch Bequeſt than what he hath in ſuch Place, or in the occupation of ſuch a perſon at the time of making the Teſtament.sPlow. 343.
15. And therefore a man may bequeath by Will not only thoſe things which he hath at the time of making thereof, but alſo ſuch things as he is to have, or may have afterwards; Thence he may bequeath the Corn that ſhall grow in ſuch Ground the next year after his death, or the Wool or Lambs his Flook of Sheep ſhall yield the next year after his death; But in caſe there ſhall be no ſuch Corn, Wool, or Lambs the next year, then the Legacy proves fruitleſs. Yet if the Teſtator bequeaths 20 Quarters of Corn, or 20 Lambs, and doth Will that the ſame ſhall be paid out of the Corn that ſhall grow, or out of his Flock the next year, and there be no ſuch Corn, or not ſo many Lambs the next year, yet the Deviſe is good, and muſt be paid. The Reaſon of the difference is, becauſe in the former Caſe there is ſuch a Reſtriction and Limitation ſet to the Legacy as renders it queſtionable whether it might ever become due or payable; In the latter there is only Demonſtration how it ſhall be paid, and nothing of any ſuch Reſtriction as calls the Legacy it ſelf into queſtion. In the former there is a tacite Condition, in the latter the Legacy is Abſolute.