Downing against Townsend and Others
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1755 |
| Date | 21 November 1755 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 189
HIGH COURT OF CHANCERY
Case 149.-downing against townsend and Others. 21st Nov. 1755. Paper writing proved as a testamentary schedule, and held to have effect from the date, to pass what was in the hands of M. at the time of the date, not what was at the death of the testator. (See post, 592, and Appendix (H).)-[Lib. Reg. 1755, A. fo. 95.] The paper writing was proved, as a testamentary act; and after argument on the merits, and time taken for consideration, Lord Hardwicke, Chancellor, gave his opinion : Two general questions arise in this cause : 1st, What is the operation and construction of this paper 1 2d, What sums of money or notes are described by it" As to 1st, Two matters are to be considered; 1st, The nature of the instrument, which is now to be taken as testamentary ; for I am bound by the sentence of the Prerogative Court: 2d, The period of time to which it relates; As to 1st, The general rule as to testaments is, that the time of the testament, and not the testator's death, is regarded. This rule admits of variety of distinctions and exceptions : One general exception is, where the legacy is universal, as of all my goods, because of the fluctuation of the personal estate ; but a specific legacy is no exception, 190 WILLOUGHBY V. WILLOUGHBY AMB. 281. unless it be in its nature subject to increase and diminution ; as a bequest of a flock of sheep. ' : The bequest in this paper comes within the general rule; for though a bequest of moveables may relate to the time of the death, yet that depends upon the declared intent of the [281] testator, which does not appear in this case. The case of Dormer v. Bishop Burnet is in point. It was heard before Lord Harcourt in 1741. The testatrix gave the Bishop her house in Saint John's Square; and by a codicil, gave him all the goods she brought into the house, except what are mentioned in a schedule. There was no schedule found ; and the Court held the exception void, but the devise good ; and that no part of the goods passed, except what were in the house at the time of making the will. To 2d. Shall consider notes as included in the word money, according to the now established determinations. The words, " has that was mine," means the same as " now has," and not " shall have " ; for the material words, " / gave her" are in the preter-perfect sense; and there are no legatory words used; for the subsequent words, " besides which I...
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