and premises became vested, in Mr. Paton, for the residue of the term created by the lease: and then it assigns the piece or parcel of ground, messuage or tenement and premises which were demised by the lease, to the trustees, to hold to them their executors &c. for the residue of the term. If Mr. Paton had intended to pass the fixtures as well as the leasehold premises, that intention would have appeared from the recitals, and he would have assigned the fixtures to the trustees, to hold to them, their executors &c. absolutely. It is plain, therefore, that the settlement does not include the fixtures. The remaining question, upon this part of the case, is whether the fixtures are household furniture within the meaning of the will. It is observable that the testator, in the bequest to his wife, couples his household furniture with his plate, linen and wines, which are all of them moveable articles: consequently, the fair inference is that he did not intend to give to her any part of his household furniture except such as was moveable. In Slanning v. Style (1), the testator bequeathed, to his wife, his tea-table, tea-kettle and all his pewter, brass, linen and woollen, with all his household goods and *implements of husbandry whatsoever in or about his dwellinghouse and Lord TALBOT, Chancellor, held that a clock in the house would not pass by the words, "household goods," if it were fixed to the house.

:

Mr. Knight Bruce, for Mrs. Paton, [claimed under the will and not under the settlement].

THE VICE-CHANCELLOR:

If Mr. Paton had thought fit to say that he would remove the stoves, &c. from the house, the trustees of the settlement could not have obtained an injunction to prevent him from removing them. They were fixed to the house in this sense, namely, that it was at his option to remove them if he thought proper so to do: but they are not the less furniture because they were fixed to the house (2).

With respect to the dividends of the stock which became due on the 5th of July, 1837, the day of Mr. Paton's death, I am of opinion

(1) 3 P. Wms. 334.

(2) In Kelly v. Powlet, Amb. 605, the MASTER OF THE ROLLS said: "The word household furniture' has as general a meaning as possible. It is incapable of a definition. It is

It

capable only of a description. comprises everything that contributes to the use or convenience of the householder or ornament of the house." See also Cole v. Fitzgerald, 27 R. R. 80 (1 Sim. & St. 189; and 3 Russ. 301).

that, as he might have received those dividends, on applying to the Bank, at any time on that day, they now form part of his personal estate.

Declare that Mrs. Paton is entitled to the income of the fixture fund, during her widowhood; and that the dividends of the stock which became due on the day of Mr. Paton's decease, belong to his residuary personal estate.

CHARLOTTE REDDEL v. DOBREE.

(10 Simons, 244-251; S. C. nom. Riddell v. Dobree, 3 Jur. 722.)
Donatio mortis causâ.

A. being in a declining state of health, delivered to B. a locked cash-
box, and told her, to go at his death, to his son for the key; and that the
box contained money for herself, and entirely at her disposal after he was
gone; but that he should want it, every three months, whilst he lived.
The box was twice delivered to A. by his desire, and he delivered it again
to B., and it was in her possession at his death. The box was broken open
by B. after A.'s death, and contained a cheque for 5007., drawn by C. and
payable to A. or bearer, and enclosed in a cover indorsed with B.'s name;
and the key (which A.'s son had refused to deliver to B.) had a piece of
bone attached to it with B.'s name written on it; Held, that there was no
donatio mortis causâ.

THE bill stated, amongst other things, that [John Dobree, whose health had been, for some time previously, and then was in an infirm and declining condition, on or about the 10th of September, 1837, delivered a box locked up, with two (1) cheques therein,] to the plaintiff, and, at the same time, said to the plaintiff: "At my death go to my son and ask him for the key, which will be found in the iron chest. If he will not give up the key, take the box to Vaughan, and he will break it open. It contains money: take care of it: it will make hundreds difference to you: it is for yourself and sister, and entirely at your own disposal after I am gone; but I shall want it from you every three months while I live:" that, at the same time, John Dobree showed the plaintiff the envelopes containing the cheques with the addresses thereon; [that on two different occasions, in December, 1837, and at the end of March, 1838, the box was delivered to John Dobree at his request, and redelivered by him to the plaintiff a day or two afterwards, and that the

(1) These two cheques were for 5007. and 2007., and were drawn by the defendant Vaughan, and payable to John Dobree or bearer. They were

placed in envelopes with the name of
the plaintiff on one envelope and of
her sister on the other.-O. A. S.

1839. July 22. SHADWELL, V.-C.

[244]

[245]

[246]

REDDEL

V.

DOBREE. [247]

[ *248]

two cheques were replaced on the second occasion by fresh cheques of the same amount in envelopes as before; and that the box,] together with the two cheques deposited and locked up therein, remained [from that time] in the possession of the plaintiff until the death of John Dobree that the key of the box, with the label thereto, was, at or about the time aforesaid, sealed up, by the direction of John Dobree, in a paper, on which was written, at his request, some direction to the effect that the key should, at his death, be delivered to the person whose name was engraved or written upon the label attached to it that John Dobree, at the time of the last-mentioned deposit and delivery of the box, was in a state of complete blindness and in a weak and languishing condition, and afflicted with the malady of which he afterwards died, and was in a dying state, and was well aware of his approaching death; and he departed this life on the 1st of June, 1838: that he made his will with a codicil thereto, dated respectively the 1st of March and the 23rd of May, 1838, but did not, thereby, make any bequest or provision in favour of the plaintiff, and, by his will, he bequeathed to his son, the defendant Robert John Dobree, amongst other things, his iron chest; and he appointed executors of his will, who renounced the probate thereof, and administration to his effects was, on the 1st of September, 1838, granted to R. J. Dobree: that R. J. Dobree, upon his father's death, *possessed himself of the paper containing the key of the box, to which key was then attached the piece of bone with the name of the plaintiff engraved or written thereon: that the plaintiff, after the death of John Dobree, applied to Robert John Dobree, and requested him, according to the directions of the testator, to deliver to her the key of the box, but he refused to comply with such request, saying that the cheques were of no use to her and that she could break open the box: that the box having been opened by the direction of the plaintiff, there were found therein two covers with the names of the plaintiff and her sister written on the same, and, in each of the two covers, was contained a cheque, of the defendant Vaughan, in favour of John Dobree; the cheque in the plaintiff's cover being for 500l., and the cheque in the other, being for 2001. that the cheque for 500l. was as follows: "2nd April, 1838. Messrs. Ransom & Co.: pay Mr. Dobree or bearer 5001.C. VAUGHAN:" that the cheques having been presented at the bankers', payment of the same was refused: that the plaintiff was advised that John Dobree intended to make, and did, by the means and in the manner before mentioned, make a valid and effectual

disposition or gift, to or in favour of the plaintiff, of the sum of 500l., to take effect upon the event of his death, which he, at the time, contemplated as an event likely soon or shortly to take place, in case he should not, at any time before his death, do any act to recall or defeat the gift.

The bill prayed that it might be declared that John Dobree had made a valid gift in contemplation of death, to or in favour of the plaintiff, to take effect upon the event of his death, of the sum of 5007.; and that Robert John Dobree, as his father's personal representative, was bound to give effect to that gift; and that he *might be decreed to pay, to the plaintiff, the sum of 500l., out of his late father's personal estate, or out of the amount due to his late father, at his death, from Vaughan.

Robert John Dobree demurred to the bill for want of equity.

Mr. Jacob and Mr. Swinburne, in support of the demurrer : The facts stated in the bill, do not amount to a donatio mortis causâ. By retaining possession of the key, the testator showed that he intended to reserve to himself the dominion over the contents of the box: Tate v. Hilbert (1), Bunn v. Markham (2), Hawkins v. Blewitt (3).

Mr. Knight Bruce and Mr. Anderdon supported the bill. * THE VICE-CHANCELLOR :

It seems to me that there is quite a mistake in this case: for I do not think that, as the matter is stated on the face of this bill, there was any donatio mortis causâ, or any thing like a donatio mortis causá: but, in my opinion, it was nothing more than a gift of that which might happen, at any time, to be in the box; and which gift was always liable, during the lifetime of the testator, to be recalled by him: and, therefore, the very essence of a donatio mortis causâ is wanting in this case.

It is stated that, in September, 1837, John Dobree deposited the two cheques or drafts in the cash-box, and that, on or about the 10th of that month, he delivered the box locked up, with the two cheques or drafts inclosed therein, to the plaintiff, and, at the time of his so delivering the same, he said to her: "At my death go to my son and ask him for the key, which will be found in the iron chest. If he will not give up the key, take the box to Vaughan,

(1) 2 R. R. 175 (2 Ves. Jr. 111). (2) 17 R. R. 497 (7 Taunt. 224).

(3) 5 R. R. 761 (2 Esp. N. P. C. 663).

REDDEL

v. DOBREE.

[ *249]

[250]

REDDEL

v.

DOBREE.

[ *251 ]

1839. July 26.

SHADWELL,
V.-C.

[ 254 ]

*

But I shall

and he will break it open. It contains money: take care of it. It
will make hundreds difference to you. It is for yourself and sister,
and entirely at your own disposal after I am gone.
want it from you every three months while I live."
The testator appears, either by himself or his son, to have kept
possession of the key. The box was twice delivered up to the
testator, and redelivered by him to the plaintiff: but there is
nothing stated, in this bill, which leads one to suppose that, when
it was delivered to the plaintiff for the last time, it was not to be
held by her upon precisely the same terms as when it was first
delivered to her. And it seems to me that the plain inference from
the transactions, as they are stated, is that, all along, the testator
meant to retain, to himself, the complete dominion over whatever
might be placed in the box; and that it was a mere accident that
he happened to die shortly after the third delivery, and did not
redemand the box from the plaintiff. My opinion is that, from the
beginning to the end, there was nothing more than, to a certain
extent, putting the plaintiff in possession of the box, but retaining
to himself the absolute power over its contents: and the plaintiff
seems to have so understood the transaction; and her acts were in
accordance with such understanding. That being so, there was no
donatio mortis causâ, nor anything in the nature of a donatio mortis
causâ in respect of which this Court can act. There was no gift.
The plaintiff held the box and its contents in trust for the testator;
and, if he did not happen to execute that trust in favour of himself,
then and in that case only, it was to be for the benefit of the holder;
and I apprehend that that is not such a trust as this Court can
execute.
Demurrer allowed.

MOLONY v. KENNEDY (1).

(10 Simons, 254–255; S. C. 3 Jur. 793.)

Husband and wife-Separate property.

A husband and wife lived separate from each other. At the death of the wife, she was possessed of cash and bank notes arisen from property settled to her separate use: Held, that the husband was entitled to them in his marital right.

IN 1817 the plaintiff intermarried with his late wife, who was then the widow of W. C. Jackson: on their marriage, an annuity of 800l. to which Mrs. Molony was entitled under her first husband's re Lambert's Estate (1888) 39 Ch. D. 626.-O. A. S.

(1) This remains unaffected by the Married Women's Property Acts: In