1833. KING ข. SHRIVES. James King and John King respectively survived the testator, and proved his will. Besides the said mortgage debt, the testator at the time of his death was indebted to various persons in various debts by simple contract, which he left no personal estate to satisfy. James King and John King had, therefore, since the death of the testator, entered into a contract with William Shrives, to sell him the said freehold estate for payment of the debts of the testator, The question for the opinion of the Court was, whether, under the will of the testator, James King and John King are now entitled to sell and convey the said freehold estate to Wm. Shrives, for payment of the testator's debts? Wilde Serjt., for the Plaintiffs. The freehold in the property in question passed to the Plaintiffs under the devise of the testator's estate, and they were empowered to sell for the discharge of the testator's debts. 1st. The word estate is in a will sufficient to pass to freehold property, unless controlled by indications of a contrary intention, which cannot here be found, as the testator's first wish was, that his debts should be discharged. Tirrell v. Page (a), Tilley v. Simpson (b), Smith v. Coffin (c), Doe v. Lainchbury (d), Doe v. Langlands (e), Sharp v. Sharp (g), Jongsma v. Jongsma. (h) 2dly. A trust for payment of debts includes a power of sale, and a power to give receipts for the purchase money. Shallcross v. Findon (i), Williams v. Chitty (k), Leigh v. Lord Warrington (1), Clifford v. Lewis (m), Kightley (a) 1 Ch. Cas. 262. (b) 1 Cox Cas. Eq. 362. v. Kightley, v. Kightley (a), Keeling v. Brown (b), Powell v. Robins (c), Spong v. Spong (d), Henwell v. Whittaker. (e) Merewether Serjt. contrà. From the terms with which the word estate is associated in this will, it is clear the testator meant only personal estate. Doe v. Dring. (g) In Doe v. Hurrell (h), where a testator having both real and personal estate, after giving several pecuniary legacies, bequeathed all the rest and residue of his estate and effects whatsoever, and wheresoever, to trustees, their executors, administrators, and assigns, upon trust, that they should, out of such residue of the monies and effects that he should die possessed of, carry on, manage, and cultivate the farm then in his possession, for the remainder of his term therein, for the joint advantage of certain of his sons and daughters therein named; and, at the expiration of the said term, upon further trust, to sell and dispose of such residue of his estate and effects or such effects as should then be upon his said farm, and to divide the money arising therefrom amngo his sons and daughters; it was held that the testator's real estate did not pass by that will. Doe v. Buckner (i). Here, the testator devises, for payment of his debts, only such estate as is not otherwise disposed of, and his freehold property is afterwards otherwise disposed of. And the plaintiffs have no power to sell for the discharge of debts. In the cases cited in support of that position, the power was inferred either from an expressed intention that the realty should be charged, or from the absence of any intention that the debts should be discharged exclusively out of personal property. Here, there is the (a) 2 Ves. jun. 328. (b) 5 Ves. jun. 359. (c) 7 Ves. jun. 209. (d) 3 Bligh, New Series, 84. (e) 3 Russell, 348. (b) 5 B. & Ald. 18. (i) 6 T. R. 610. 1833. KING V. SHRIVES. 1833. KING V. SHRIVES. plainest expression of an intention that the debts shall be discharged out of the personal property exclusively; the will directing, that whatever remains of the testator's personal effects, after discharge of his debts, shall be appropriated to the use of his family. Wilde. In Doe v. Dring the question was, as to what would pass under the word effects; and in Doe v. Buckner and Doe v. Hurrell, the decision turned upon the absence of any words of inheritance, and the testator's having bequeathed only the residue of his estate and effects for purposes which did not require a fee. The following certificate was afterwards sent: We have heard this case argued by counsel, and have considered it, and we are of opinion, that under the will of the testator therein mentioned, James King and John King are now entitled to sell and convey the said freehold estate to the said William Shrives, for the payment of the said testator's debts. 1833. EASLEY V. CROCKFORD. IN the month of September 1830, the Plaintiff went to a public meeting in London, with more than 5007. in his pocket. Entertaining some apprehensions of the company in which he found himself, he kept his hand on his pocket; but, notwithstanding that precaution, was robbed, and, among other property, lost a Bank of England note for 2007., payable to bearer. He advertised his loss in the newspapers. In June 1832, this note was traced to the possession of the Defendant, who received it, as he said, in payment of a bet on the Derby, but could not recollect from whom. The Plaintiff having sued him in trover, the Chief Justice of this Court, before whom the cause was tried, left it to the jury to say, whether the Defendant had exercised due caution in taking a note of such amount without making a memorandum of the name of the person from whom he received it; and the jury having found for the Plaintiff on the ground that the note had been received without due circumspection, Andrews Serjt. moved to set aside the verdict, on the ground that the identity of the note had not been sufficiently established; that the Plaintiff had been instrumental to his own loss in going to a mixed assembly with a large sum of money in his pocket; and that there had been no want of circumspection in the Defendant, it being unusual for any but bankers to make a memorandum of the names of parties from whom they receive bank notes. He relied chiefly on Snow v. Saddler (a), where a party who had received a 30l. bank note in payment of 1833. EASLEY ข. CROCKFORD. a bet at Doncaster races, was held entitled to retain it against the owner who had been robbed. TINDAL C. J. having taken time to look into his notes of the trial, now pronounced the opinion of the Court as follows: I have shewn my brothers my note of what passed on the trial of this cause, and we are all of opinion there is no ground for the present application.. The application has been made on three points; first, that the identity of the note was not sufficiently established; but upon that head we are satisfied with the finding of the jury; and it remains only to consider the other two. The second objection to the Plaintiff's recovery was, that he had been instrumental to his own loss, by not observing due caution in the care of his property. Now as to that, it is clear that when, from want of caution, a party is instrumental to his own loss, as in collision with the carriage or vessel of another, his want of caution is an answer to his action for the loss. But here the Plaintiff was in no way instrumental to his own loss. It is imputed to him as gross negligence that he attended a mixed meeting with a large sum of money in his pocket. That, undoubtedly, was not a discreet act. But the question is, whether his losing his money in that manner could confer a title on the Defendant, who is alleged to have obtained the note without sufficient care in ascertaining who the person was from whom he took it: and it is difficult to see how the Plaintiff's want of caution in 1830 can affect the conduct of the Defendant in taking the note in 1832. And though, perhaps, the Defendant, if he took the notes without having seen the Plaintiff's advertisement, might be less blameable, it would be too much to say, that the negligence of the Plaintiff can be set up as an answer to his claim, unless connected with the Defendant's con duct; |