ambler case sir george kelly knight against powlet see in re Londesborough l I  Ch under a bequest of household furniture plate in the house at testator death  whether in common use or not if suitable to the rank of the testator picture  hang up linen and china both useful and ornamental in the house will pass book  in a library will not pass lib Reg a foe S c dick finch Cox ms at the roll  that and that may the late duchess of Bolton former mrs Beswick have the  defendant and two other natural son by Charles late duke of Bolton to who she  be afterward marry and have contract a intimate acquaintance with the  plaintiff who be a physician and be first introduce to her as such make her  will on that December and thereby after execute a power of appointment over a  sum of money which be settle by the late duke upon her child as she shall  appoint and after confirm the settlement which she have make of her house land  and premise at Westcomb in ken she give and devise her household furniture and  farm utensil which shall be within or upon the premise at her death unto the  defendant let down powlet she then order her executor to present the defendant  to certain live of which she have the advowson the first time they shall  become vacant and then recite that she be entitle to the reversion manor land  and premise in ken expectant upon the death of the plaintiff she give such  reversion to the plaintiff and his heir she then give pound to the defendant  and after give two other small legacy she give the residue of her real and  personal estate of what nature or kind soever to the plaintiff and make he  executor the duchess die on the that of January and be at her death possess of  a great quantity of plate which be worth about pound some useful and  ornamental china book pictres and linen which be then at her house at Westcomb  and which the defendant take into his possession together with the house peel  by plaintiff as residuary legatee to have the above thing deliver to he or  satisfaction for such of they as have be sell the defendant by his answer  claim title to the plate china book linen and such of the picture as be hang  up under the devise to he of the household furniture and ambler he claim the  rest of the picture under a gift from the duchess in her lifetime the  principal question in the cause respect the plate and the book the plaintiff  examine witness to none of the thing but the plate the defendant enter into  evidence as to all of they and prove that a the linen in the house except a  parcel which be in the piece and which have be since the duchess death deliver  to the plaintiff be in common use and be not more than sufficient for the  family that the china be partly useful and partly ornamental and that the  former be in common use and latter set up over chimnies and door and upon  cabinet and that the whole be not of considerable value that a room be fit up  for a library and the book place there but it be say that the collection of  book though numerous be not valuable be most novel romance c that the picture  which be not hang up be give to the defendant in her lifetime and put by in a  spare room for his use till he shall have a house to put they in the plaintiff  be in court give up his claim to the picture declare he be satisfy that the  duchess intend the defendant shall have they it be argue by Mr jewel de grey  and Cox for the plaintiff that the plate do not pass by the word household  furniture and a distinction be take between household good and household  furniturethat suppose the former word will pass plate the latter will not but  there be to colour for the distinction and the case which have be determine  upon this question be some of they upon the word furniture and other upon the  word good the counsel for the plaintiff in the apply give up that argument it  be also say that the large quantity and great value of the plate be a argument  that the duchess do not intend the late shall pass that it do not suit with  the defendant circumstance that the devise immediate follow the confirmation  of the settlement which she have make of the house show her intention to give  g way ambler er p only such ambler thing as be proper and suitable to the  enjoyment of the house and that plate be not so that the word household  furniture be couple with the word farm utensil and that the latter word relate  to thing of a inferior nature will control the large sense of the former and  confine their meaning to household good of a inferior nature to plate that the  plate be worth more than all the household good and therefore it will be  strange to make plate pass by word which be descriptive of thing of a much  less value that if the word do comprehend plate it can be only such as be in  common use and that the plate which the duchess have be much more than she can  or in fact do use that as to the book they be not comprehend under the word  household furniture book be for the entertainment of the mind not furniture  for use or ornament and the case of Bridgeman v dove atk in chancery that  November be cite where the word of the devise be all my medal picture and  furniture and hold that the library of book do not pass on the other side it  be argue for the defendant by myself Mr perryn and Mr skinner that the word  household furniture will in general pass plate common use that all the plate  which the duchess be possess of be in common use and that there be no  particular circumstance in this case to confine the sense of the word but  there be several which favour the consider they in the large extent the follow  case be cite to show that in general plate in common use will pass by the word  household furniture or household good franklin v earl Burlington Prec in Ch  hear easter and also in vern Michaelmas master v sir Harcourt master wms  Nicholls v Osborn wms and the reporter note at the bottom of wms by which case  it appear that the court have be of one uniform opinion ever since and it be  argue on the reason of the opinion that as to useful plate it be substitute in  the room of the same kind of thing which be former make of a base metal and  which be always consider as pass by those word such as pewter dish and  Plataeae ambler brass candlestick c and that as to ornamental plate it be as  proper to pass as any other ornament of a different kind to support the fact  the evidence of the butler the housekeeper the cook a lady who live as  companion with the duchess and two other servant be read who give a very  strong and clear account that all the plate be in constant use and that the  duchess always dine and sup on plate except when she be absent at Tunbridge  well which be for threeor four month every year and except after her last  return from Tunbridge in July when she contend so ill till her death that she  keep her room and have no butler she have discharge her butler for a fault a  little before she go last to Tunbridge well and even during that time the  plate be under the care of the housekeeper and not lock up by the duchess and  the witness swear that she can not abide to eat off china and believe that if  she have recover her health she will have take another butler and use the  plate as she have do before it be argue that there be no special circumstance  in this case to confine the sense of the word that the plate consist of a  large quantity and of great value be a reason for its pass by the word  household furniture and accord to the note in wms be the ground of the change  of opinion in court of justice which former when the plate use in private  family be very trifle hold that it do not pass under those word that the word  household furniture be couple with farm utensil do not confine the sense for  they relate to distinct thing each of they general expression the one to  describe the indoor and the other the outdoor good that the value of the plate  be more than the other household good if that be the fact be immaterial for it  be not the case of a more valuable thing pass as appendant to another thing of  less value and which other thing be only describe for the plate be part of the  thing describe household furniture be the genus and plate a species of that  genus ambler that the defendant circumstance be as suitable for the use of the  plate as the house itself and the other furniture that the circumstance of the  devisee be never take into consideration upon these question that the duchess  can not be understand to mean that the household furniture shall go with the  house accord to the settlement that if she have so intend ambler er p shewould  have say so that the plate be as capable of be entail as the other good that  what she give to the defendant she give he absolute without any view to its go  with the house that any objection arise from the devise immediate follow the  confirmation of the settlement hold equal strong against any of the household  good pass as it do against the plate pass and therefore the argument prove too  much on the other hand it be say there be special circumstance in favour of  the devise the defendant be son of the testatrix the plaintiff no way relate  to her that the court will construe a devise by a parent in favour of a son in  the most extensive and beneficial manner that the word of the will be very  extensive within or upon the premise by which she mean to give every thing she  can leave in the house that this last observation acquire great strength by a  act which the duchess do and which amount to a declaration of her intention  and sense of those word for very soon after make her will she send a casket of  jewel and other valuable effect from her house at Westcomb to Mr Woodcocks  chamber in Lincoln inn where they be keep till after her death that she be  apprehensive they will pass by the devise to the defendant if they remain in  the house and as she do not intend they shall she therefore send they away his  honour take time to consider of his opinion and on Tuesday the that of June  deliver it the principal question relate to the plate whether it passes by the  specific devise of the household furniture and be clear of opinion that it do  ambler saint consider the meaning of the word household furniture of itself  and independent of any circumstance d as accompany with circumstance as to the  saint the word household furniture have as general a meaning as possible it be  incapable of a definition it be capable only of a description it comprise  every thing that contribute to the use or convenience of the householder or  ornament of the house but as I do not know any case that have be determine on  that word only without other circumstance take into consideration I shall  proceed to the d question the circumstance may be so various as to occasion  different and even contradictory determination that be in one case the word  household furniture may pass plate but in another not the rank and quality of  the person possess it will occasion the determination one way if a person of  rank buy a service of plate suitable to his quantity and never use it yet I  think the plate will pass by the word household furniture I can agree it be a  rule that pale will not pass unless use as such by the testator there be no  such general rule this question always depend on circumstance and never be  determine by the plate be use or not suppose a tradesman have a dozen of  silverhandled knife and fork which he common use and have beside a service of  plate which perhaps he buy as a good bargain the service will not pass see in  Colpoys v Colpoys James Le Farrant v Spencer Ves sen Hele v Gilbert Ves I have  look into Lord macclesfield manuscript note of Cullifer v Devenish they be  very short and imperfect but it appear to have be a devise to the wife and  that she claim only such plate as be common use in the house the word here be  extreme general and will have comprise any plate or household furniture  purchase after make of the will on the other band it must be admit that if the  duchess have remove any of the plate out of the house as she do the casket of  jewel it will have exempt the plate so remove I do not in my opinion rely on  the circumstance of the plate be in common use the keep ambler her chamber as  she do and not use the plate during such time will not be a exemption nor will  any other occasional non user the case where non user be a exemption must be  like the case of Lefarrant v Spencer Ves sen where the testator buy the plate  to trade with but admit for argument sake not from necessity that use the  plate be essential to make it pass by the word household furniture nothing can  be strong than the evidence of user in this case his honour then observe on  the weakness of the evidence on the part of the plaintiff and the strength of  the evidence on the part of the defendant and declare that the latter great  preponderate and that as the ambler er p quantity of plate which the duchess  appear to have be fit for her rank and be make use of by her and the word of  the devise be large enough to comprehend it be of opinion that the plate pass  by the devise as to the book his honour say he be not satisfy that the duchess  do not intend that every thing within the house shall pass but as the  resolution of the court have be that book do not pass by the word  householdfurniture he must determine so in this case note porter v tournay Ves  Bridgman v dove atk neither will wine pass under these word porter v tournay  ub sup see countess Gower v earl Gower post Fleming v burrow Russel the linen  and china both useful and ornamental be likewise declare to belong to  defendant as be also the picture hang up and in case pursuant to the admission  of sir George Kelly boon v Cornforth Ves sen the defendant be to retain what  be so declare to belong to he and to deliver the other thing to the plaintiff  note his honour refuse to give the defendant his cost out of the estate of the  duchess though it be much insist upon at the bar that wherever a suit be  occasion by the word and expression in a will the court always give cost out  of the estate the decision in this case with respect to plate be approve of  and act upon by Lord Alvanley master of the roll in porter v tournay Ves so  under the description of household good plate have be hold to pass master v  master p wms Nicholls v Osborn p wms Snelson v Corbet atk hay v hay Freem but  where a testator bequeathe part of his plate in term it be hold that the  remainder do not pass under the word household furniture franklin v earl of  Burlington pre Ch with respect to cost in such case the rule be that they must  be pay out of the general personal estate not specifical dispose of and the  specific legatee be only to contribute as far as cost be incur by inquiry  respect his specific legacy bagshaw v Newton Mod how v chapman Ves Nisbett v  Murray Ves Burton v cook ib Skrymsher v Northcote Swanst beam on cost decree  declare that the plaintiff be entitle to the library of book silver S seal  curiosity observatory and telescope globe case of portfeuille and sedan in the  plead mention as not specifical comprise in the say bequest to the defendant  but a part of the general residue of the personal estate of the say testatrix  and declare accord to the true meaning and construction of the say will and by  virtue of the specific bequest the defendant be entitle to the plate silver  and china whether it be useful or ornamental exist at the house f Westcomb at  the death of the say testatrix and the plaintiff admit in court that the  defendant be entitle likewise to the picture exist at that time in the say  house whether hang up or continue in the case it be order that the same shall  be lodge with the other particular which the defendant be before declare  entitle to and shall be retain by he and that the bill so far as it seek  delivery of the same or satisfaction therefore shall be dismiss without cost  on either side