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apparel,) (1) in case of a deficiency of assets (m). Nor are they to be allowed to her, where there are not assets at the time of her husband's death, though contingent assets afterwards fall in; for the same might not have happened until twenty or thirty years after the death of the testator, nor possibly until after the death of the widow, when the end and design of the widow's wearing her bona paraphernalia, in memory of her husband, could not have been answered, and, therefore, it was reasonable that this should be reduced to a certainty, viz., that if there should not be assets real and personal at the testator's death, or, at least, at the time when the jewels were applied to debts, then the jewels should be liable (n).

But the widow's claim to her paraphernalia is preferred to but not to his that of a legatee of her husband, and, therefore, they will legacies : not be liable to satisfy the testator's legacies, or any of them (0), either general or specific (p).

Likewise, where a creditor has a double fund, the widow's the widow is claim to paraphernalia shall not be disappointed by the effect of his option of resorting to the personal estate (9). There. assets against

the heir : fore, if the personal estate, including the paraphernalia, has been exhausted in payment of specialty creditors, the widow shall, in equity, stand in their place as to so much upon the real assets of the heir-at-law (r). So where there is a real and against a trust estate, charged with the payment of the husband's debts, the wife may resort to the trust to be reimbursed to

entitled to marshal the

devisee in trust :

(1) Noy's Maxims, c. 49. 2

2 Black. Comm. 436.

(m) Willson v. Pack, Prec. Chan, 225. Lord Townshend v. Windham, 2 Ves. Sen. 7. 2 Black. Comm. 436. Campion v. Cotton, 17 Ves. 264. “It is not fit,” said Lord Keeper Finch, “that the widow should shine in jewels and the creditors starve: " Lady Tyrrell's case, 1 Freem. 304.

(n) Burton v. Pierpont, 2 P. Wms. 79.

(o) Snelson v. Corbett, 3 Atk. 370.

(p) In Graham v. Lord Londonderry, 3 Atk. 395, Lord Hardwicke said that the right of the wife was superior to that of any legatee.

(9) Aldrich v. Cooper, 8 Ves. 397.

(r) Snelson v. Corbett, 3 Atk. 369. See also Tipping v. Tipping, 1 P. Wms. 729. Tynt v. Tynt, 2 P. Wms. 544.

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the value of her paraphernalia, if the personal estate has been exhausted by her husband's creditors (s). So a real estate, charged with payment of debts, in aid of the personal

estate, shall be applied before the widow's paraphernalia (t). Quare, whe. But whether the widow shall stand in the place of creditor ther against a devisee : for the amount of her paraphernalia against real assets

devised, unless in trust for payment of debts, appears doubtful (u). According to Lord Hardwicke's decisions in Ridout v. Plymouth (x), and Probert v. Morgan (y), she is not so entitled; but the case of Tynt v. Tynt (2), is at variance with those decisions. It seems, however, that if the devised estate be subject to a mortgage, or other specific incumbrance, she would have a right to marshal the assets by throwing the

charge upon the estate, as a legatee might in such a case (a). if the husband

It has already appeared that the husband may alien the paraphernalia wife's paraphernalia in his lifetime; but if the alienation be his executors must redeem not absolute, but as a pledge or security for money, the wife them for the widow :

surviving him will be entitled to have them redeemed by his executors out of her husband's personal estate, if sufficient for that purpose, after payment of his debts (6). Thus, where the husband had pledged a diamond necklace of his wife as a collateral security for 10001. borrowed on bond, and authorised the pawnee to sell it during his absence for 15001., Lord Hardwicke held, that as in fact it was not sold in his lifetime, this did not amount to an alienation by the husband, and that, therefore, the widow was entitled to have it redeemed

by his executors (c). the widow The widow may bar her right to paraphernalia by settlebarred of her paraphernalia ment before marriage: as in Cholmely v. Cholmely (d), where by marriage articles :

(s) Incledon v. Northcote, 3 Atk. (a) Oneal v. Mead, 1 P. Wms. 438.

693. Lutkins v. Leigh, Cas. temp; (t) Boyntun v. Boyntun, 1 Cox, Talb. 03. 2 Roper, Husband and 106. S. C. 1 Bro. C. C. 576. Wife, 146, note (a), by Jacob.

(u) See Cox's note to Tynt v. See post, Pt. Iv. Bk. 1. Ch. II. Tynt, 3 P. Wms. 544.

§ 1. & II. (x) 2 Atk. 105.

(6) Graham v. Londonderry, 3 (y) 1 Atk. 440. S. C. 1 Ambl. 6. Atk. 395.

() 2 P. Wms. 542, before the (c) 3 Atk. 394, 395. Master of the Rolls, 1729.

(d) 2 Vern, 83.

third

persons,

the wife by her marriage articles agreed to have no part of her husband's personal estate, but what he should give her by Will; and this was held to bar her of her paraphernalia (e).

If the husband should bequeath to his wife all household goods, furniture, plate, jewels, linen, &c., for life or widowhood, with the remainder over, this will not bar her of her paraphernalia (f). But in such a case if the widow does not, by election to

take them as by some act in her lifetime, manifest her election to take legatee. them by her elder and better title, her executor or administrator cannot lay any claim to them after her decease (g). Paraphernalia are in their nature materially distinct from Jewels, &c.,

given for the gift of jewels, &c., to the wife, by third persons, for her sepa- separate use of

the wife by rate use: as the latter may be aliened by the wife in the lifetime of the husband, and are not liable to his debts. With not liable to respect to what shall be considered as given to her separate debts : use; where some diamonds had been presented to the wife by the husband's father, on her marriage with his son, they were considered by Lord Hardwicke, as a gift to the separate use of the wife, and to which she was entitled in her own right (h). So where certain pieces of plate were given to the wife immediately after marriage, by the husband's father, Lord Hardwicke decided that they were to be considered as gifts to the wife for her separate use (i). And a present by a stranger to the wife during coverture must be construed as a gift to her separate use: as where the Regent of France delivered to the husband, as a present for his wife, his picture set about with diamonds (k).

husband's

(e) S. P. Read v. Snell, 2 Atk. 642.

(f) Marshall v. Blew, 2 Atk. 217.

(9) Clarges v. Albemarle, 2 Vern. 247.

(h) Graham v. Londonderry, 3 Atk, 393.

(i) Brinkman v. Brinkman, 3 Atk. 394, cited in Graham v. Londonderry.

(K) 3 Atk. 393. Lord Hardwicke

in this case mentioned the case of
Countess Cowper, in which several
trinkets (which, it is presumed,
were not intended to be worn, like
paraphernalia, as ornaments to her
person) had been given to her by
Lord Cowper himself in his life-
time, and they were held by Sir
Joseph Jekyll to be her separate
estate. See also this case again
noticed by his Lordship, in 1 Atk.
271. Ante, p. 674, 675.

secus, of jewels presented by the husband before marriage.

But with respect to jewels, &c., presented to the wife by the husband himself before marriage, there is no exemption from the liability to his creditors : for, immediately on the marriage, the law gives them to the husband, and he cannot be considered as a trustee for them for her separate use afterwards ().

SECTION IV.

Of Donations Mortis Causâ.

It will be proper to close the subject of the estate of an executor or administrator in the chattels personal of the deceased in possession, by considering another species of interest in the property of the deceased, which vests neither in the personal representative, nor in his heir, nor in his widow. This is called a Donatio mortis causâ, and is thus defined in the civil law, from which both the doctrine and the denomination are borrowed : Mortis causa donatio est, quæ propter mortis fit suspicionem ; cum quis ita donat, ut si quid humanitus ei contigisset, haberet is, qui accepit; sin autem supervixisset is, qui donavit, reciperet; vel si eum donationis pænituisset ; aut prior decesserit is, cui donatum sit (m).”

From this definition it results, that to constitute a donatio mortis causâ, there must be two attributes: 1. The gift must be with a view to the donor's death. 2. It must be conditioned

Attributes of a donatio mortis causa :

(1) Ridout v. Lord Plymouth, surprised with sickness, and not 2 Atk. 105,

having an opportunity of making (m) Inst. lib. 10, tit. 7. The cor- his Will; but lest he should die rectness of this definition, and the before he could make it, he gives inaccuracy of that given by Swin- with his own hands his goods to burne, Pt. 1, s. 7, pl. 2, is noticed his friends about him; this, if he by Lord Loughborough, in Tate v. dies, shall operate as a legacy; Hilbert, 2 Ves. Jun. 119. The de- but if he recovers, then does the scription of a donatio mortis causá property thereof revert to him : " given by Lord Cowper, is, “where Hedges v. Hedges, Prec. Chanc. a man lies in extremity, or being 269.

to take effect only on the death of the donor by his existing disorder. A third essential quality is required by our law, which, according to some authorities, was not necessary according to the Roman and Civil law (n); viz. 3. There must be a delivery of the subject of the donation. 1. The gift must be made with a view to the donor's 1. The gift

must be made death (o). If a gift be not made by the donor in peril of by the donor

in peril of death, i. e. with relation to his decease by illness affecting death. him at the time of the gift, it cannot be supported as a donation mortis causâ (p). Where it appears that the donation was made whilst the donor was ill, and only a few days or weeks before his death, it will be presumed that the gift was made in contemplation of death (q), and in the donor's last illness (). 2. The gift must be conditioned to take effect only on the 2. The gift

must be condeath of the donor by his existing disorder (s). But although ditioned to

take effect only it is an essential incident to a donation mortis causâ that it be

on the death subject to a condition, that if the donor live, the thing shall be of donor. restored to him, yet it is not necessary that the donor should expressly declare that the gift is to be accompanied by such a condition : for if a gift be made during the donor's last illness, the law infers the condition that the donee is to hold the

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(n) But see Lord Hardwicke's judgment, in Ward r. Turner, 2 Ves. Sen. 440.

(0) Nothing can be more clear, said Lord Eldon, in the case of Duffield v. Elwes, 1 Bling. N. S. 530, than that a donatio mortis causâ must be a gift made by a donor in contemplation of the conceived approach of death.

(P) Tate v. Hilbert, 2 Ves. Jun. 121. S. C. 4 Bro. C. C. 290. Hedges v. Hedges, Prec. Chanc. 269, Miller v. Miller, 3 P. Wms. 357. Gardner v. Parker, 3 Madd. 185. See also Edwards v. Jones, 1 Myln. & Cra. 236. Post, p. 688.

(9) Lawson v. Lawson, 1 P. Wms. 441. Miller v. Miller, 3 P. Wms.

356, 358. Hill v. Chapman, 2 Bro.
C. C. 612. Snellgrove v. Baily,
5 Atk. 214. Gardner v. Parker, 3
Madd. 184.

(r) 1 Rop. Leg. 21, 3rd edition.
In Blount v. Burrow, as reported in
1 Ves. Jun. 546, Eyre, C. B., seems
to be of opinion, that there must
be positive evidence that the gift
was made in the last illness : but
this dictum is not found in the re-
port of the case, in 4 Bro. C. C. 72,
and does not seem supported by
any other authorities.

(8) Tate v. Hilbert, 2 Ves. Jun. 120. Irons v. Smallpiece, 2 Barn. & Ald. 553. Tate v. Leithead, Kay, 658.

Staniland v. Willott, 3 Mac. & G. 664, 675.

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