ambler h sir jacob downing against Bagnall ante p post letter l hark ms Lord  chancellor Hardwicke this bill be bring by the plaintiff as executor of sir g  Downing decease to have a account of all such sum of money and note as the  defendant mrs townsend and Mr Bagnall and his wife have in their possession of  the testator at his death and the relief pray be find upon the general right  of a executor and upon particular charge of fraudulent concealment of part of  the estate sir g Downing have a very great estate both real and personal a  widower without any child very parsimonious and careful of his money very  reserve and jealous mrs townsend come into his service in the low capacity as  a kitchen maid and afterward advance to the place of housekeeper she have a  natural daughter by sir George bear in may and be twentyseven year of age when  sir George die sir George make his will in and make the plaintiff his sole  executor and residuary legatee he add a codicil date d December by which he  give to mary townsend a annuity of pound ayear for life and to the defendant  mrs Bagnall pound ayear for life sir g Downing thirteen year after the date of  the codicil execute a paper which make a great question in this cause this be  to satisfy my executor and all other person that what money mrs townsend have  of I in her custody I give it to her for her daughter beside what I have give  her by the codicil to my will this paper be attest by two witness examine in  the cause this paper I must now look upon as testamentary have be prove as  such in the spiritual court the proper jurisdiction it be swear that at the  time ambler of the execution of this paper sir George declare it shall be for  the benefit of the daughter that in case of his death it may be a maintenance  for they till their annuity become Payable sir George live till eight year  after the execution of this paper he be very subject to the gout and die of it  mrs townsend be then in the house with he and do not send for the plaintiff  till after sir George be delirious after his death Mr Wingfield be send there  by the plaintiff appointment mrs townsend inform he that it be sir George  desire that two gentleman of the neighbourhood shall be present when the will  be open upon which Mr astell and another gentleman be call in when the will  have be read it be swear mrs townsend declare that be not all sir George have  leave they but that he have give her daughter what she have in her custody  that be bid and here Mr Wingfield and Mr astell swear different one say she  mention note but both agree the exact sum of pound be mention and then mrs  townsend show they the testamentary note after sir Jacob Downing the plaintiff  return to London and he have such confidence in mrs townsend that he do not  examine into any thing nor seal any thing up and he order her to take the  money from the place where it be bid mrs townsend afterward take it up and  show it to Mr Wingfield and it be the exact sum of pound about half ayear  after this there be a treaty of marriage between mrs townsend daughter and Mr  Bagnall in the settlement the lady portion be mention to be a annuity of pound  ayear for her fife and south sea annuity purchase with the pound and sir Jacob  Downing be a trustee for the lady in that settlement after the marriage the  plaintiff hear that mrs townsend have get more money and note than have be  mention and this appear by a attempt to get off a bank post bill that have not  be endorse by sir George Downing upon ambler er p which the plaintiff direct  Mr Wingfield his steward to inquire about it of Mr Bagnall and his wife who  refer n to mrs townsend who say she have only a note for pound that she have  little to live upon beside her annuity and have be persuade to take too  expensive lodging upon this the plaintiff have file his bill for a discovery  of what money and note mrs townsend have in her custody at the time of sir  George death and ambler now it come out that there be pound in money and pound  in note which the defendant insist they be entitle to under the testamentary  paper of January and there be two general question in this case saint what be  the true construction and operation of this write of January dly what sum of  money seem to be within the description of that write and give to the  defendant mrs Bagnall as to the first the construction and operation of the  note there arise two consideration first what be the nature of the note or  instrument d what period of time it refer to as to the nature of the  instrument it be of a very particular kind it have be consider first as a act  inter live and after the testamentary nature ita in ms and ambulatory till the  testator death that the prerogative court have now determine that it be a  testamentary schedule and this court be bind by their decision see meadow v d  of Kingston Amb d to what period of time it must be take to refer the general  rule be to the time of make the testament and not the testator death Swinb  part sect but this rule be subject to a general exception where the legacy  bequeathe be universal and in the nature of the thing subject to increase or  diminution but not good or specific legacy unless a flock of sheep or the like  roof vol lib sect par page dorm v burnet before Lord Harcourt lib Reg a foe  testatrix by her will give to her husband her house in saint John square  Clerkenwell for his life and give Mm all the good which she bring into the say  house except such as she shall dispose of otherwise in a schedule annex to her  will testatrix die without any schedule to her will Lord Harcourt be of  opinion that the devise be good though there be no schedule yet that only such  good will pass as she bring into the house before make the will and fond to  convenient and use in the house see Kelly v powlett Amb green v simons Amb  letter Q dean of Christchurch v barrow Amb ambler this be a case in point as  to the relation of the time in this testamentary schedule that it must relate  to what be in mrs townsend custody at the time of execute the note and what  she have at the testator death and I be of opinion it will include not only  the money she have but also cash note for they be now hold to be the same in  the case of Popham v Bruce and Lord Aylesbury in chancery Amb the word have in  this paper be in the present tense but it be insist that it ought to signify  shall have and to be sure it sometime receive that construction but here the  subsequent word I give it her confine it to the time of the gift a recital in  a will wont make a devise lev right v Hammond I stram Skerrat v Oakley t r  wright v Wyvill vent cite in the case of bampfield v Popham p wms one by will  recite that he have give a estate to his wife for her jointure whereas in  truth he have not and resolve that the will do not amount to a devise it may  be object what then be there in this write that be testamentary sir George  have before make this write put several sum of money into mrs townsend hand  for the benefit of her daughter not absolute but to take place after his death  this paper be intend to confirm those gift and to become absolute by his death  the introductory word be this be to satisfy my executor and after I give it to  her for the use oh f her daughter beside what I have give her by the codicil  to my will and this construction seem only reconcileable to common sense it be  argue that this paper be a declaration of trust for the daughter to vest the  property in her it can have that construction for if so if the daughter have  behave ever so ill or have marry ever so improvident and she be then nineteen  year of age she will yet have be entitle to it beside in that case mrs Bagnall  may have make her will and give it away or if she have die intestate it will  have go to the crown ambler er p it be insist it extend to all sum of money  and note which mrs townsend have from sir George in her custody but if this be  to be the construction then ambler every thing mrs townsend have be purloin  and embezzle during his life will all have go into this fund can it be imagine  that sir George will do such a thing when it appear by the proof in this cause  that he be so very jealous that he use to make her open her hand when she come  from his escretoir least she shall have take any thing away Jones v Selwyn pre  Ch these sort of donation ought to be prove with the great fairness for they  be not to be encourage and this be a more dangerous case the construction seem  to be that this testamentary schedule shall extend to such sum as mrs townsend  have at the date of the paper and which sir George permit to continue in her  hand till his death sir George mean to bind his executor at his death but not  himself the second general question be what sum of money or note seem to be  within the description of this write and give to mrs Bagnall and I be of  opinion such sum and note as be in mrs townsend hand at the time of the date  of the paper it must be inquire what mrs townsend have in her hand at the time  of the date of the write and remain in her custody at the time of sir George  death this can only now appear from the deposition of mrs townsend she be now  dead and it be for this reason I permit her deposition to be read though it be  the nice case I ever meet with in respect of competency and credit and I think  she have depose in such a manner as entire destroy all her credit she swear  that the next day after sir George death she tell the defendant her daughter  that she have in her custody pound money and a large parcel of note the  daughter answer she shall tell sir Jacob of only pound and as she be but poor  provide for she will give her the rest she say she have six bank note of pound  each before the date of the paper in but though the whole amount of the note  be pound she know nothing of the date of any of they nor the particular time  of the delivery of they to her but she swear the great part be before January  I suppose she have be inform that the time of delivery may turn out to be  material therefore she in who knowledge alone this matter rest give this lose  uncertain testimony pound part of the money she swear she give to her brother  William ambler townsend who conceal it in the garden this sum therefore be not  in her custody townsend who conceal it in the garden after sir George death it  be all a scene of delusion on the plaintiff they pitch upon the sum of pound  as a sum they know the plaintiff will ready agree to she add there be some  note as one witness swear when plaintiff ask the amount of they afterward mrs  townsend say they be about pound and upon cast they up they amount to pound  mrs Bagnall pretend only to the sum of pound and the money hide in the garden  be part of it this be a artful and fraudulent contrivance to gain pound and  take her chance for the residue they ought to be bind by this sum of pound I  do not go upon a agreement but evidence Garside v Ratcliff Ch can where fraud  in all respects prcesumantur and a trial at law be refuse vern Hitchcox v  Sedwick if mrs townsend have be alive I shall have be incline to have direct a  issue at law to try what be in her custody at the date of the paper but now  all light be shut out by he death but what appear from her deposition such as  it be I shall therefore fix the sum mrs Bagnall be entitle to at pound by  evidence on one side and acquiescence this testamentary schedule be the only  title the defendant set up and this relate to what mrs townsend have in her  custody at the date of it it can not be support as a donation death causan for  that must be give in prospect of death and the possession part with Hassell v  tynte Amb must also take it from the evidence that the plaintiff intend she  shall have some note and from his acquiescence what note therefore bear date  after the testamentary schedule she can be entitle to but must have the rest  but let the defendant account to the plaintiff for the sum of pound that be in  the custody of mrs townsend and interest for the same from mrs marriage and  let it be refer to the master to see what note bear date since Jan and let  they be deliver to the plaintiff and I decree the plaintiff his cost ambler er  p