COWLING ". COWLING. (26 Beav. 449-454; S. C. 33 L. T. O.S. 5.) 66 Stock in the funds, in which the testator has a reversionary interest will not pass by a bequest of my goods and furniture, my plate and linen, all money and notes that may be due to me at my decease." THE testator, Mr. Cowling, at the date of his will and at his death was entitled to a reversionary interest in one-third of two sums of 8,3801. Consols and 2,7981. Reduced, expectant upon the death of André Elisée Coutau. These sums were standing in Court to the credit of a cause of Norris v. Harrison. The testator made his will, dated 1835, which was in these words: "I bequeath unto my beloved wife, Sarah Cowling, my goods. and furniture, my plate and linen, all moneys and notes that may be due to me at my decease. This is my will and testament. Given under my hand at Greenwich this 14th day of March, 1835." The testator died in the same year. André Elisée Coutau died in 1858, and the reversionary *interest then fell into possession. It was wholly claimed by Sarah Cowling, under the will; but the next of kin of the testator insisted, that it did not pass by the terms of the will, and that, as to this portion of the testator's property, there was an intestacy. Mr. R. Palmer and Mr. Berkeley for the plaintiff, one of the next of kin: If the stock passes, it must be under the word "goods" or moneys." The effect of these words, in this will, depends on the context. If stock would pass by the word "money" or "goods," still, here there is the addition of "and notes," showing that the testator did not intend to include everything by the words "the moneys." Again, the moneys are also limited to those due to me at my decease." Secondly. The words are limited to things ejusdem generis. Mr. Cracknall in the same interest. Mr. Cotton, for the widow, argued that the words were sufficient to carry the stock, and that the authorities warranted that construction, which, it was apparent, was the real intention of the testator. Mr. R. Palmer, in reply. The following cases were cited: Gosden v. Dotterill (1), Ken (1) 36 R. R. 244 (1 My. & K. 56). 1859. March 12, 14. Rolls Court. [449] [ *450 ] dall v. Kendall (1), Hotham v. Sutton (2), Lowe v. Thomas (3), Waite v. Combes (4), Stocks v. Barré (5), Arison v. Simpson (6). THE MASTER OF THE ROLLS: The question is, whether, on the terms of the will, the testator intended to dispose of the whole of his personal estate. It is properly observed, that the word "goods" does not affect the question, because the expression is "my goods and furniture,” making a distinction between them, though furniture would be included under the description of "goods." The only question. is, whether it passes under the words "money and notes;' and I am much disposed to think that the question is to be treated in the same way as if it occurred as to a similar question regarding the residue of all the personal property. " The reported cases are not easily reconcileable, except in this respect, that they all agree in this: that where, from the will, it appears, that the testator intended to include all his personal estate, the word "moneys moneys" will be sufficiently large to cover it, but otherwise the word "moneys" is to be read in its restricted sense. Of the numerous cases cited and citable, I shall notice only two which are favourable to the widow as taking the whole, and two which are unfavourable to her, and which lead to the construction that the property which is not specifically mentioned goes to the next of kin. In Dawson v. Gaskoin (7) the testatrix gave pecuniary legacies and 2001. each to her executors, "and whatever remained of moneys" to the five children of E. D. Lord LANGDALE held, that this was a gift of her *stock, and there was every appearance of her intending to include her whole personal estate when she gave legacies payable out of her general personal estate to one, and then made a bequest of "whatever remained of moneys' to others. The other case is Waite v. Combes (4), where the testator directed his executors "to take and receive all moneys that might be in his possession or due to him at the time of his decease and invest it for his wife for life. Vice-Chancellor KNIGHT BRUCE held, because there was no other means of giving effect to the word "moneys," that this was equivalent to a gift of the general personal estate. These cases also seem to determine this: that wherever legacies are given, payable out of the estate, (1) 28 R. R. 125 (4 Russ. 369). (5) Johns. 54; to be reported in 123 R. R. (6) Johns. 43; to be reported in 123 R. R. (7) 44 R. R. 176 (2 Keen, 14). the gift of the "residue of the money" would include all the personal estate. On the other hand, there are two cases unfavourable to the widow, namely, Godsden v. Dotterill (1), and Lowe v. Thomas (2). The case of Godsden v. Dotterill seems scarcely consistent with Dowson v. Gaskoin; it is certainly very difficult to reconcile them. In Godsden v. Dotterill the testator gave legacies of money "and the rest of my money to be equally divided" between his brother and niece. Sir JOHN LEACH considered the case with some care, and came to the conclusion, that the words, "the rest of my money " did not pass Consols. He said, “I have no doubt that it was the intention of this testator, that the stock should pass under the term "money," but if it be settled, that stock shall not pass under the term "money," unless there be some explanatory context *in the will, I am afraid the testator's intention will not be effectuated, for here there is no such explanatory context." On a subsequent day he said "I was desirous of looking into the authorities before deciding the case, and I find the authorities. confirm the impression I had at the hearing of the cause, that the term 'money' will not pass stock unless there is in the will some explanatory context, and here is no explanatory context." I doubt very much whether any rule can be laid down. It would seem difficult to justify this conclusion: that if sufficient be found in a will to show that the testator intended the stock to pass, still that the word should not be sufficient to effectuate that intention without explanatory context. The case before me is infinitely weaker, but Lowe v. Thomas, which appears distinct, appears to me to govern this case. The words in Lowe v. Thomas were these, "I, Ann Thomas, do give and bequeath to my brother, John Thomas, the whole of my money for his life," and it was held by the LORDS JUSTICES, that stock did not pass. Here the expression is, "all moneys and notes." What confirms me in the impression that this is a specific bequest is this: that there are gifts of three sorts of property separately; first, there is the gift of "my goods and furniture," secondly, of "all my plate and linen," and thirdly, of "all moneys and notes that may be due to me at my decease." I do not therefore consider that by the word "money" he intended to comprehend everything, but something separate and distinct. If I came to the conclusion on this will, that there was a disposition of the whole of the *testator's personal pro (1) 36 R. R. 244 (1 My. & K. 56). (2) 101 R. R. 657 (5 D. M. & G. 315). COWLING v. COWLING. [453] [454] COWLING t. COWLING. 1859. Feb. 17, 18, 21. Rolls Court. [ 45 ] [ *455] perty, I should have no doubt that I ought to follow Dowson v. Gaskoin, rather than Godsden v. Dotterill. But I have not come to that conclusion, and I think that most probably the stock was not present to the testator's mind, and that he intended only to give those three enumerations of property which he has specified. The result is, that this is a specific bequest, and that all charges on the estate will primarily fall on the residue of the property. I must make a declaration in favour of the plaintiff. THE METROPOLITAN COUNTIES, &c. SOCIETY v. BROWN (1). 66 (26 Beav. 454–462; S. C. 28 L. J. Ch. 581; 5 Jur. N. S. 378; 7 W. R. 303.) Mortgage of iron works and rolling mill, with the machinery, &c. specified in schedule, and all engines, machinery, fixtures and things which might thereafter be fixed and fastened in or upon the same premises, whether in addition or substitution: Held, that the words fastened in or upon the same premises" governed the sentence, and that subsequent additions, consisting of an engine for turning a lathe, a steam hammer and anvil, a boiler and furnace, passed to the mortgagees; but that cutters, bed plate, straightening plate, and the metal flooring of the mill all of which were movable articles did not pass by the mortgage. Under an assignment of the machinery fastened in or upon a mill: Held, that an anvil, though not fastened or fixed to it, passed, as essential to a fixed steam hammer. Prior to a mortgage, the mortgagee's valuer included certain articles in his valuation, which the mortgagees expected would be comprised in their mortgage, but they were omitted from the deed. A bill to rectify the deed, by including them, was dismissed, there being no proof of a common mistake of mortgagor and mortgagees. BROWN was entitled to a long lease of the premises at Sheffield, on which the Albion Iron and Steel Works were carried on. By indenture of mortgage dated the 23rd of September, 1856, Brown granted and assigned to Vickers the Albion Iron and Steel Works, piece or parcel of land, rolling mill and hereditaments, with the appurtenances, and also all that steam engine set up and fixed for working the said rolling mill, and the boilers, wheels, shafts, machinery, gearing apparatus, trains of *rolls, shears, fixtures and things of in and connected with the said rolling mill, and which are specified in the schedule, under the said indenture of mortgage written, and all engines, machinery, fixtures and things which might thereafter be fixed and fastened in or upon the same premises, whether in addition to or substitution of the several fixtures, machinery, articles and things specified in the said schedule. (1) Ex parte Astbury (1869) L. R. 4 Ch. 630, 38 L. J. Bk. 9, 20 L. T. 997. Reference may be found in Reynolds v. Ashby [1904] A. C. 466, 73 L. J. K. B. 946, 91 L. T. 607, to many more recent cases on this subject.-O. A. S. POLITAN COUNTIES, BROWN. The schedule referred to contained the following articles and THE METROthings: "Four steam boilers and steam pipes and valves complete; sixty horse power steam engine complete; driving wheel &C. SOCIETY and shaft; fly wheel and shaft; two speed wheels and shaft; long underground shaft; four speed wheels at end of ditto; long train of rolls for file steel, consisting of bed plate and its foundation, ten standards or housings, one pair of pinions, and four pair of rolls with spindles and coupling boxes to each pair; train of rolls for rounds, &c., consisting of bed plate and foundations, ten standards or housings, three pinions, three high set of rolls, pair of two feet rolls, and two pairs of twelve inch rolls with spindles and coupling boxes complete; turning lathe; pair of shears; forty tons or upwards of cast metal floor plates; nine large metal pillars and girders for roof of rolling mill.” On the 18th of February, 1857, Brown mortgaged the same property, by the same description and with a similar schedule, to the plaintiffs, for securing 1,500l. The first mortgage also became, by transfer, vested in the plaintiffs. On the 31st of August, 1857, Brown assigned all the machinery, fixtures, articles and things in the mill to defendants, as trustees for their creditors, subject to the prior mortgages. After the date of the mortgages, several variations took place in the machinery, &c., &c., of the mill, and additions were made thereto. The first question was, whether these additions to the mill, made after the mortgages, passed by the mortgage deeds, or to the trustees for the creditors under the subsequent assignment. These consisted of (1) a donkey engine; (2) an engine for turning a lathe; (3) a steam hammer and its anvil; (4) a boiler and furnace; (5) cutters; (6) bed plates; (7) straightening plate; and (8) the metal flooring of the mill. The circumstances relating to their fixity are fully stated in the judgment. The plaintiffs filed this bill for a declaration of their right to these articles, and for an injunction to restrain their removal. The plaintiffs also, by their bill, prayed the rectification of the second deed under the following circumstances: Some of the articles, which had been added to the mill between the dates of the two mortgages, had been included in the valuation of the plaintiffs' valuer, but the schedule of the first mortgage was retained verbatim in the second. Upon this, the plaintiffs insisted, that it was intended by both parties that these additional articles should be included in the second mortgage, and they asked by their bill, that the second mortgage might be rectified, by inserting these articles in the schedule thereto. [456] |