Lowe v Thomas
| Jurisdiction | England & Wales |
| Judgment Date | 30 May 1854 |
| Date | 30 May 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 891
BEFORE THE LORDS JUSTICES.
S. C. Kay, 369; 2 Eq. R. 742; 23 L. J. Ch. 616; 18 Jur. 563; 2 W. R. 499. See Herbert v. Harrison, 1869, 20 L. T. 386. Questioned, Pritchard v. Pritchard, 1870, L. R. 11 Eq. 234. See In re Pringle, 1881, 17 Ch. D. 823; In re Cadogan, 1883, 25 Ch. D. 156. Distinguished, In re Townley, 1884, 53 L. J. Ch. 516. See Hart v. Hernandez, 1885, 52 L. T. 218.
[315] lowe v. thomas. Before the Lords Justices. May 30, 1854. tas^ ,j- /3/ [S. C. Kay, 369 ; 2 Eq. R. 742 ; 23 L. J. Ch. 616 ; 18 Jur. 563 ; 2 W. R. 499. See Herbert v. Harrism, 1869, 20 L. T. 386. Questioned, Pritchard v. Fritchard, 1870, L. R. 11 Eq. 234. See In re Pringle, 1881, 17 Ch. D. 823; In re Cadogan, 1883, 25 Ch. D. 156. Distinguished, In re Tmvnley, 1884, 53 L. J. Ch. 516. See Hart v. Hernandez, 1885, 52 L. T. 218.] Under the following bequest, " to my brother, J. T., the whole of my money for his life, at his death to be divided between my two nieces, Rebecca and Mary L., my 892 LOWE V. THOMAS 5 DE 0. M. jc O. 316. clothes to be likewise divided between them, my watch and trinkets for my niece, Mary L. I likewise declare the longest survivor of the above-mentioned nieces is to become possessor of the whole money " : Held, that stock did not pass. This was an appeal from the decision of Vice-Chancellor Wood upon the construction of the following will:- " I, Ann Thomas, do give and bequeath to my brother John Thomas the whole of my money for his life, at his death to be divided between my two nieces Rebecca and Mary Lowe, my clothes to be divided likewise between them, my watch and trinkets for my niece Mary Lowe. I likewise declare that the longest survivor of the above-mentioned nieces is to become possessor of the whole money. "ANN thomas, September 17th 1833." The testatrix's property consisted of 860 Bank 3| per cent, annuities standing in her own name ; a moiety of the sum of 1937, 17s. 8d. Old South Sea annuities standing in the names of the trustees of a will by which it was bequeathed to her; 30 in cash deposited with the testatrix's sister Mary Lowe; 2 or 3 cash in the house in which the testatrix resided; her wardrobe, trinkets, a few articles of furniture valued at 24, and half-a-year's dividend on the above sums of stock which accrued due before she died, but had not been received. The bill was filed by the sisters, and the question was whether the stock passed, which was disputed by the other next of kin. The Vice-Chancellor decided this question in the negative, and the Plaintiffs appealed. [316] The case is reported below in Mr. Kay's Reports (page 369). Mr. Rolt and Mr. Hardy, for the Appellants. They cited The Case of Mary Shelmer's Will (Gilbert, 200); Lynn v. Kerriilge (West's Rep. temp. Hardw. 172); Hotham v. Sutton (15 Ves. 319); Ommanney v. Butcher (T. & R. 260); Legge v. Asgill (T. & R. 265, n.); Kendall v. Kendall (4 Russ. 360); Gosden v. Dotterill (1 Myl. & K. 56); Rogers v. Thomas (2 Keen, 8); Dowson v. Gaskoin (2 Keen, 14); Cunningham v. Murray (\ De G. & Sm. 366); Willis v. t'laskett (4 Beav. 208); Glendening v. Glendening (9 Beav. 324); Boi/s v. Morgan (3 Myl. & Cr. 661); Wmte, v. Combes (5 De G. & Sm. 676) ; Vaisey v. Reynolds (5 Russ. 12)" Mr. Walker and Mr. C. Hall, for the next of kin, cited Boys v. Morgan (3 Myl. & Cr. 661) ; Parker v. Marchant (1 Ph. 356). Mr. Chandless, Mr. Mackeson and Mr. Fischer appeared for other parties. Mr. Rolt, in reply. the lord justice knight bruce. " Non aliter a significatione verborum recedi oportet quam cum manifestum est aliud sensisse testatorem (Dig. lib. 32, tit. 1, s. 69)." So said Marcellus, and the Vice-Chancellor's conclusion appears to be the just result of an accurate application [317] of that rule, there being here a total absence of context to shew that the testatrix employed the word "money" otherwise than in its correct and proper sense, which is not property generally, but a particular species of property. That species no more includes annuities than houses or furniture. An annuity is not, though its fruit is, money, nor where a man gives his wool or his apples are we to presume that he means to give his sheep or his orchard. That this lady herself, if she could be appealed to, would not overrule the judgment which I am now giving I am not clear, but the numerous class of persons who, in wills and otherwise, speak as if the office of language were to conceal their thoughts, have no right to complain of being taken to mean what their language expresses. the lord justice turner. It is not unlikely that it was the testatrix's intention to pass by the description "the whole of my money," something more than what strictly and literally speaking would pass under the description of "money," but probability is one thing and judicial certainty another. Now the first question, as Mr. Hall very accurately put it, is this :-Could it be the intention of the testatrix, by those words, to pass the whole of her property ? Are they tantamount to a description of the whole of her estate 1 It appears to me to be clear upon the context of the will that this could not be the intention, because we find in the will, after the disposition of the whole of the testatrix's money, a B DE G. M. & 0.318. DIPLOCK V. HAMMOND 893 disposition of some specific articles, namely, her clothes, watch and other things, and this not by way of exception out of the disposition of the whole of her money previously made. It is clear, therefore, that the whole of the residuary estate cannot have been intended to pass under the description of money. [318] Then can it be said, that under that description she...
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