Cook v Oakley et Al'
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1715 |
| Date | 01 January 1715 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 399
SIR JOHN TREVOR, MASTER OF THE ROLLS.
[302] de term. S. hillaeii, 1715. Case 77.-cook versus oakley et al'. [1715.] Sir John Trevor, Master of the Rolls. 2 Eq. Ca. Ab. 323, pi. 19"; 438, pi. 32. One being on shipboard, and intitled to part of a considerable leasehold estate by the death of his father, which he did not know he had a right to, makes his will at sea, and devised to his mother (if living) his rings, and makes A. his executor, and devises to A. his red box, and all things not before bequeathed: this shall not pass the leasehold interest, or what the testator did not know he was intitled to, but shall be restrained to things ejusdem generis. Gilbert Cook, one of the five children of Benjamin Cook, went beyond sea in his father's life ; after which, his father, being possessed of a considerable leasehold estate, devised two thirds of his said estate to his five children equally, and one third to his wife, and died ; then the wife died, having devised her third to her children equally. Afterwards Gilbert the son, having been beyond sea many years, and being on shipboard, made his will, and gave to his mother (if alive) his gold rings, buttons, and chest of cloaths, and to his loving friend, the defendant Francis Goslin (who was on board with him), his red box, arrack, and all things not before bequeathed; and made him sole executor. [303] It appeared in the cause (and indeed by Gilbert's will), that he did not know that his mother was actually dead, and consequently could not know what estate was given him by his mother; and tho' he knew his father was dead, yet he was not informed what will his father had made, or what his father had left, or whether he was intitled to any part of his estate. And it was insisted on behalf of the testator's brothers and sisters, that here being an express legacy given to the executor, viz. the testator's red box and arrack, it could not be presumed, but that if the testator had also intended to give him his share in the leasehold premisses, he would have mentioned them ; and if he did not know he had any such share in the leasehold estate, then it was plain he could not intend to dispose of it; and the devise of all things not before bequeathed, could not be intended to pass the leasehold interest, or real chattels, but mere personal things only ; such as were on board the ship, or things ejusdem generis with those above-mentioned; (1) that it was...
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