| Superior Court of New Hampshire | Dec 15, 1838
The first question for consideration is, whether the witnesses were rightly admitted. Cynthia Greeley, who claimed to be the indorsee of the note, and who with her husband indorsed it to the plaintiff, does not appear to have had any interest in the event of this suit. There is no evidence to show that she, or her husband, was to gain
Nor has the executor any interest which should prevent his testifying. If the note tvas duly delivered over by him to Cynthia Greeley, he is in no way accountable ; and if it was not, such delivery, under a mistake of her rights, will not bar him from reclaiming it. If, therefore, it should be supposed, that in case of a judgment for the defendant, in this case, the executor might be required to inventory and account for the note, he would be entitled to receive it, and recover it from the defendant. So far as any legal interest isconcerned, he stands indifferent in the matter.
No rule of public policy has been cited, nor does any suggest itself to us, for the exclusion of either of these witnesses. It is not an objection to the competency of a witness, when offered to sustain a suit, that he has given currency to the instrument on which it is founded, or that it has passed through his hands, if he has no interest.
The evidence being admissible, the verdict of the jury has settled the contested question of fact; and it appears that the payee of the note having indorsed ^er name upon the back of it, and having placed it along with other articles in a certain trunk, by her last will, which has been duly approved, bequeathed the trunk and all its contents to Cynthia Greeley, to whom the executor afterwards delivered it. The next question is, whether the note may thus pass by her in-dorsement, and by the bequest of the trunk and all its contents.
A bequest of all his goods passes the testator’s notes, bonds, money, &c. 1 Peere Williams 267, Anonymous; 3 Aik. 62, Crichton vs. Symes; 1 Brown's Ch. R. 128; 2 Williams on Executors, 748.
But it has been held that by a bequest of all the testator’s goods and chattels in a particular house, “ no goods and chattels in the house can pass but such as were properly in
So of all things in a house. 1 Brown’s C. R. 127, Moore vs. Moore; 4 Ves. 166, Jones vs. Lord Ref ton; 1 Roper on Legacies 190, Green vs. Symonds, cited.
“ In Fleming vs. Brooke, 1 Schoale & Lefroy 318, where the bequest was of all the testator’s property in A’s house, except a particular bond, Lord Redesdale held that, in spite of the inference to be drawn from the exception, choses in action generally did not pass : but this decision has been doubted.” 2 Williams 749, note c.
And “ in a recent case, Sir John Leach, M. R., held that a bequest of a cabinet, ’ with whatever it contains except money,’ would not pass a promissory note payable to the testatrix, of a date anterior to the will, and which at her death was found in the cabinet.” 2 Williams 749, cites 4 Russ. Chañe. Cas. 69, Read vs. Stewart.
The soundness of this latter decision may also well be questioned ; and the reason for the distinction made between bonds and securities for money, and plate, linen, bank notes and ready money, where the bequest is of all the testator’s goods and chattels at a particular place, is perhaps not perfectly clear, if there is nothing in the will to restrain and limit the general words, and show that the testator intended “ those only savoring of locality.” 1 Yeates’ Rep. 101, Jackson vs. Robinson; 3 P. Williams 112, Woolcomb vs. Woolcomb. It was said by the chancellor, (1 Brotan 128) “ the true point is, whether the context will qualify the meaning of goods and chattels.” This distinction, however, seems to be settled by authority.
In Chapman vs. Hart, the chancellor said : “ in the Countess of Aylesbury’s case I was of opinion that by a devise of all things in a house, money and bank notes passed to the testator’s wife, and that the testator meant to consider the notes as cash; but bonds do not pass, not admitting of
The terms, “ all things in a house,” are certainly broad enough to comprehend promissory notes and other choses in action ; and if the reason why they do not pass by such general words is that they are not conne’cted with the house, and therefore ivere not, probably, within the contemplatio7i of the testator ; that is a matter to be judged of from the whole will; and the rule, therefore, would not in all cases be inflexible. If there was any thing in the context, or in the nature or circumstances of the case, to indicate that the intention of the testator was to include them, there would surely be no propriety in the application of such a rule.
If in the case of a devise of certain specified property in a particular place, “and other effects.” the ordinary rule of construction limits the general terms, “other effects,” to effects ejusdemgeneris, (2 Williams 751; 15 Fes. 326,Hotham vs. Sutton) there is, in a legacy of a cabinet “ with whatever it contains,” or a trunk “ and all its contents,” nothing
If, however, it were held, in accordance with the principle of Read vs. Stewart, that a devise of a trunk with all its “ contents,” is not sufficient to pass all which it “ contained,” and that choses in action generally would be excepted in such case ; the fact that in this case the note was indorsed seems to place it on the same ground as money, or bank notes, in this respect, and may be considered as giving it the necessary locality. It is said, 1 Roper on Legacies (1 Am. ed.) 191, chap. 4, sect. 1: “The several cases which have been adduced concur in establishing that bank notes will pass to the specific legatee under a bequest of all goods in the testator’s house. The reason is, that they are considered money, and not merely as representing money. This being so, it is an apparent consequence of the decisions made by the,courts of law, that exchequer notes, promissory notes payable to bearer,exchequer bills, and bills of exchange, indorsed in blank, are not to be considered choses in action but money of the persons in whose possession they are ; and that those instruments possessing, equally with bank notes, the locality required, will pass to the legatee under the terms of the above bequest.” And again, the same writer says : “ The reason why bank notes may be the subjects of gifts mortis causa, viz,, that they are considered money, and not merely as representing money, and that the property in the money passes by their delivery, equally applies to government and negotiable securities, under particular circumstances. Hence it is conceived, that all negotiable instruments which require nothing more than delivery to pass to the donee the money secured by them, may be the subjects of donation mortis causa. That the delivery of bank notes has been so adjudged, appears in a preceding page ; and there is no reason why exchequer notes, or promissory notes payable to bearer,
The fact that the note in this case was indorsed, is certainly a very strong circumstance to show that the testator intended that it should pass to the legatee, as well as the rest of the contents ; and if any thing more than the very general terms of the bequest was necessary to show such intention, as the authorities indicate, this may well be held conclusive ; for why otherwise was the indorsement made.
Upon authority, therefore, as well as upon what we believe to be the meaning of the testator, disclosed by the general words, and attendant circumstances, we are of opinion that the note must be held to have passed by the will.
This being so, there seems to be no sufficient reason why the plaintiff, to whom it has been indorsed, may not maintain an action in his own name. Doug. 633, Peacock vs. Rhodes.
Judgment on the verdict.