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death, unless there is a subsequent clause restricting the bequest, or changing its natural meaning.

Such was the ruling of Lord CAMDEN, in The Dean and Chapter of Christ Church vs. Barrow, Ambler 641. "I am clear," said he, "that the pictures added to the testator's collection, after making his will, passed by the devise to the plaintiffs, upon the principle that personal estate is ever fluctuating; and so would it be in case of a devise of all a man's personal estate generally." See also Masters vs. Masters, 1 Peere Williams 424.

So in Swinburne on Wills 418: "It seems clear," says the author, "by our law and the civil law, that a devise of all a man's personal estate passes all he may die possessed of, and not only that he had at the time he made his will: if the contrary resolution should prevail, it would put one under the difficulty of making a new will every day, and create the greatest perplexity imaginable." See also Gayre vs. Gayre, 2 Vernon 538; Wilde vs. Holzmeyer, 5 Vesey Jr. 811.

The spirit of the 55th section of our Wills Act, 2 Swan. & C. 1627, although applicable to real estate strictly, would apply, if there could be room for doubt. In England, the Act of 1 Vict. c. 26, which changes the ancient rule as to after-acquired estates, expressly includes real and personal property by name.

If the devisory words we have thus examined will embrace the description of chattel in litigation, does the 5th clause of the 31st section of the testator's will limit the former bequest, explain it, or in any way modify his then expressed intention? The words relied on by the defendants' counsel are these: "all my real estate and personal property which I may acquire after the date of this my will," following the introductory language of the section, "I give, devise, and bequeath to the city of Cincinnati."

This clause, although broad enough to convey the whole afteracquired personalty, must be taken in connection with the previous devise to the plaintiff and his sister Lizzie, and be construed with all the circumstances attending the execution of the will, the nature of the chattel bequeathed, as well as the general purpose the

testator designed to accomplish, before we can clearly ascertain his intention.

The words household furniture are not used in any part of the will, except in the clause which gives all such property to the plaintiff and his sister. There is no restriction upon the terms, nor yet any exception as to chattels of the same description suggested by the testator. He commences the distribution of his estate by expressions having a known legal definition, and which unquestionably were understood by the counsel who drew the will, as well as by the devisor himself: he makes an absolute gift to his nephew and niece of all the chattels included in the class he described, without restriction or limitation, and it may well be inferred he could not have intended that the words personal property, subsequently used, should include any article of the class he had already excepted, more especially when we find he annexes to the term household furniture the words "and any other personal property not hereinafter specifically devised," thereby distinguishing his household furniture from every other denomination of his personalty. This is the settled rule of construction, where a prior clause in a will is attempted to be controlled by a subsequent one, whether in the same instrument or a codicil.

The principle is, "that technical words or words of known legal import shall have their legal effect, unless from subsequent incon sistent words it is very clear that the testator meant otherwise:" 2 Williams on Executors 927.

The leading case of Jesson et al. vs. Wright, decided by the House of Lords, and reported in 2 Bligh 56, 57, in which all the authorities were examined, establishes fully the doctrine. See also the opinion of Baron ALDERSON, in Lees vs. Mossley, 1 Y. & Coll. Exch. Eq. Cases 589, and DENMAN, C. J., in Gallini vs. Gallini, 5 B. & Adolph. 621. This doctrine is stated very clearly in Young and Wife vs. Executors of McIntyre, 3 Ohio 501. "The widow," says the Court, "claims upon general terms, and seeks an interpretation contrary to the evident intention. The daughter claims upon a bequest in express terms of the specific subject, and her claim comports with the whole intention."

See also 4 Ohio St. 351, Thompson's Administrator vs. Thompson et al. Nor is there any objection to this construction, in the fact that the portrait had not yet become a part of the household goods, and was moreover in a distant city when he died. It is a matter of intention merely, to what purpose the testator designed to apply it, and there is nothing to destroy the very natural implication, that it was his purpose to place it in his family mansion, any more than there would be if he had purchased in the same city, a service of china, or of plate, or some valuable article of mahogany or rosewood.

It might well be asked, if the object of the testator was not to make the portrait a part of his household ornaments, for what other purpose did he sit to the artist? None is intimated, much less proved.

We regard the relation the testator bore to his kinsmen of great importance in ascertaining his purposes to the various devisees in his will. He was an aged man and had never been married. The plaintiff and his sister were inmates of their uncle's family; the niece living with him, and doubtless, presiding over his household To both, he gives by the 9th clause of the same section, under which the plaintiff claims the property in controversy, the permission jointly "to occupy his dwelling-house for the period of five years free of rent," thereby clearly intimating, as we believe, not only that the family mansion, at his decease, but the family furniture already devised, should alike be enjoyed by the legatees.

There would seem to be a fitness in sustaining such bequest, as the possession of the one very naturally attaches to it, whatever made convenient, or ornamented the other. The object was to preserve both, that the family, having lost its head, might still be remembered in this token of his regard for the surviving members.

A painstaking, laborious man, who had gained by industry a large fortune; who had struggled in the battle of life and wou pecuniary independence; having no children, was about to distribute his estate, before the law would make a division among his kinsmen. With great particularity he gives to a long list of relations and friends, some token, either in money, real estate, or personal pro

perty, of his regard. Having thus performed what he deemed to be his duty to others, he proposes to educate the poor children of Cincinnati; where he had long lived and at last died.

To establish on a magnificent scale, an institute for the moral and intellectual improvement of generations yet to come, he had an ideal before him to which his mind seemed to cling with great tenacity, and he developed it in his will, with as much clearness of detail, as the outlines of such a vast plan could be understood or foreshadowed, before its parts were finally adjusted, and its workings practically understood.

With this double object in view, the remembrance of his relatives, and the establishment of a noble charity for his race, we cannot suppose he could intend the bequest to either object should be contradicted by general terms, or mere formal language.

His family furniture could not materially aid in the foundation of a great public institution, either by the sale of the property, or its introduction within its walls. It was fit only for the family mansion, and could alone be properly valued by those who could associate with it the name of their relative and friend, who in common with them participated in its daily use ;-more especially so, when a family portrait becomes the evidence of former friendship, or future remembrance.

We cannot presume it could have been the intention of the deceased to bequeath the mere work of the artist to an institution to commemorate the name of its founder, when by an act of princely liberality he had already erected a monument, upon which he might well inscribe the language of the poet :

"Non omnis moriar,

Multaque pars mei vitabit Libitinam "

It will be more in harmony with the testator's spirit, and illustrate more truly the modesty with which he endows a university, by the bequest to our city of nearly half a million of dollars, for our own people to provide the portrait, or the statue, to commemorate a public benefactor. He who left them a splendid inheritance has done enough to perpetuate his name. When the edifice shall be erected,

where the recipients of his bounty are to be educated, it will then be a just tribute to his memory, that the canvas or the marble shall remind posterity of Charles McMicken.

On the whole case, we are of opinion that the plaintiffs, as devisees under the will of the testator, are entitled to the possession, and have the only title to the property they claim.

LEGAL MISCELLANY.

The Supreme Court of New York, sitting at Rochester, have recently made a very important decision (in the case of Hague vs. Powers), sustaining the constitutionality of the Act of Congress of February 25th, 1862, under which the United States legal tender notes are issued; or, in other words, affirming the power of Congress to authorize the issue of such notes, and to enact that they shall be a legal tender for the payment of debts. The case appears to have been elaborately discussed by counsel and Court. Judges E. D. SMITH, JOHNSON, and J. C. SMITH delivered opinions, the length of which unfortunately prevents us from giving them to our readers in full, and WELLES, J., concurred.

The following statement of conclusions we take from the able and learned opinion of E. DARWIN SMITH, P. J.

1st. The issue of treasury notes is warranted by the Constitution of the United States at all times, in the discretion of Congress, as a medium for the payment of taxes under the taxing power, and as a form of security to the public creditors for money loaned under the power to borrow money."

2d. The form, size, and denomination of such notes, and the making of them in the similitude of bank bills, and payable to bearer, so as to be transferrable by delivery, and go into circulation as money are matters entirely within the discretion of the Legslature; and so far as relates to their voluntary receipt and circulation by the public, they stand upon precisely the same footing as bills of exchange or promissory notes issued by private individuals or corporations, and rest exclusively upon their credit as merchantable securities.

VOL. XI-32

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