and furniture in his house at S. together with the lease of the said house for the term that should be to come therein at his death; and it appeared that the testator had two houses, one at S. and one at B., and it had been for several years his custom to remove his plate and linen (except sufficient for one week's use without washing) from one house to another, according as the family changed their residence, and that at the time of his death the whole was at B.: the wife was held entitled to all the plate and all the linen except the linen for the week left at B.: for there being only one set of plate and linen, it was like a general devise of all plate and linen." Lady Shaftesbury's case has been doubted in a practical work; yet in a late case, in which a man bequeathed to his wife all his household goods, plate, &c., that should be in or about his dwelling-house in Doctors' Commons at the time of his decease; and after the making of the will the testator took a house in Bedford Square, and removed to it the greater part of the furniture from his house in Doctors' Commons: the Vice-Chancellor observed, that probably, if the testator had been asked, whether he meant to give his wife the furniture in Bedford Square, he would have answered in the affirmative; but a gift of such furniture as should be in his house at Doctors' Commons at the time of his decease could not pass furniture, which at the time of his decease was in his house in Bedford Square.

If the goods are only removed for a necessary purpose, as on account of fire, it will not be an

a Land v. Devaynes, 4 Bro. 537.

1 Rop. Leg. 34; and see Mr.

Raithby's note to the case.

e Heseltine v. Heseltine, 3 Mad. 276.

ademption. And where the captain of a ship bequeathed to his wife all his goods and chattels on board the W., and afterwards removed to another ship: Lord Hardwicke thought there was a difference between this, and goods in a house; and that the removal of them out of the ship, it being a description so precarious, did not infer an intention to revoke, or at least an intention in the creation of the legacy, that if the goods should not be there at his death, they should not pass.

1 Ves. 273. 1 Bro. 129.

Chapman v. Hart, 1 Ves. 271.

CHAPTER VI.

OF PAYMENT.

SECTION I.

Of the Persons to whom Legacies are to be paid, and herein
of the Equity of married Women to a Provision.

THERE seems formerly to have been a difference of opinion how far in the case of a legacy given to an infant the executor could with safety pay it to him, or to his father for him. This point is not now of much importance, for by the legacy act he is”. empowered to pay it into the Court of Chancery without suit, and when the legatee attains twentyone he may petition for it: since which if a bill be filed for securing the legacy the costs will not be given out of the testator's estate. But of course a payment to the parent if authorized by the will is .valid; and a legacy to A., an adult, "to be equally 3.3.& fer 506. G246 divided between himself and his family," or "for kit 13 him, and his children's use," may be paid to A., notAm withstanding the infancy of the children. Trinkets

134

r

also, specifically given to infants, have been ordered
to be delivered by the executors to the father of the
legatees.

Where a legatee was abroad, but had left a gene

ral authority to A. to receive all sums due to him, the legacy was ordered to be paid to A. The case of a legatee abroad is now provided for by the legacy act in the same way as for an infant.

A bequest" to his Majesty's government in exoneration of the national debt" was ordered to be transferred to such person as the king, under his sign manual, should appoint.

A legacy to the parish of C. was construed a gift to the poor of the parish; but a gift to the parish church of H. was held to belong to the churchwardens for the reparations of the church; for as on the one hand the parson of the church is a corporation for the taking of land for the use and benefit of the church, and not capable of taking goods, or any personalty on that behalf; so, on the contrary, the churchwardens are a corporation to take money, or goods, or other personal things for the use of the church, but are not enabled to take lands.

Money given for placing out poor apprentices is to be paid to the corporation of the town, or to the parson of every town or parish not incorporate.

A legacy to a married woman, if not given to her separate use, and if no suit has been instituted," may be paid to her husband; or may be set off against a debt due by the husband to the testator. A pay

a Carr v. Eastabrooke, 2 Cox, 390; and see Hill v. Chapman, 11 Ves. 239. b36 Geo. III. 52. 32.

Newland v. Att. Gen. 3 Mer. 684, on the ground, according to a modern work (Prest. Leg. 189) of its being a void bequest.

d West v. Knight, 1 Ch. Ca. 134. Att. Gen. v. Ruper, 2 P.W. 125.

f 7 Jac. I. 3. Att. Gen. v. Lord Newport, Rep. T. Finch, 187.

See 4 Ves. 18. 10 Ves. 90. 1 Glyn & Jam. 68.

b 10 Ves. 90. 9 Pri. 36. Doswell v. Earle, 12 Ves. 473; and see Adams v. Peirce, 3 P.W. 11.

Ranking v. Barnard, 5 Mad. 32. Ex parte O'Ferrall, 1 Glyn & Jam.347.

1

с

ment to her will not be valid; for as the husband is chargeable for her devastavit,' and liable for her conversion of goods of which she is only devisee for life, notwithstanding a separation has taken place between them; so on the other hand in equity, as at law, a gift to the wife is a gift to the husband, who may release or assign a legacy bequeathed to her, notwithstanding a divorce a mensâ et thoro: and if he and his wife give a letter of attorney to A. to receive it, and A. receives it accordingly, but the husband dies before it is paid over to him; it is considered as having vested in his possession, and will go to his

executors.*

It has long, however, been the practice in equity, when a husband is obliged to apply to the Court for a personal demand in right of his wife, and there has been no settlement or agreement upon the marriage, not to allow him to obtain it without making a provision for her. Lord Hardwicke observes, this is an equity grounded upon natural justice, and is that kind of parental care which the Court exercises for the benefit of orphans. Yet other judges have wondered how the rule came to be established, and thought it difficult to discover the ground of the wife's equity."

a Palmer v. Trevor, 1 Ver. 261; and see 5 Ves. 521.

b Com. Dig. Baron & Fem. N. Powell v. Bell, Pr. Ch. 255. Kings v. Hilton, Cro. Car. 603.

• Lord Paget v. Read, I Ver. 143. d Stephens v.Totty, Cro. Eliz. 908. Mo. 665. 1 Roll. Ab. 343. 2 id. 301. Wats v. Conisby, Hob. 247. Atkins v. Dawbury, Gilb. Eq. R. 88;