Page:The English Reports v1 1900.pdf/545

any of them should die, such child's portion should go to the survivors, or survivor; and likewise to educate and keep them in the mean time, during the joint lives of himself and the respondent; and after the decease of either of them, to pay interest for the money after the rate of £6 per cent. per ann. And the respondent did thereby release and disclaim all dower, thirds, claims, and demands, in or out of the real or personal estates of the said Nathaniel Jackson, by the common law, or custom of London, or any other custom or usage whatsoever, except as aforesaid: and then follows this exception:

Provided always nevertheless, and it is the true intent and meaning of these presents, and of all the parties hereunto, that these presents, or any thing herein contained, shall not extend, or be construed to extend, to bar, release, or hinder the said. Mary from having, claiming, and enjoying any legacy or bequest, the said Nathaniel Jackson shall or may, by his last will and testament in writing, duly published in the presence of, and attested by three or more credible witnesses, give, devise, or bequeath unto, or for the use or benefit of the said Mary; nor to all or any the household goods or utensils of household stuff, rings, plate, jewels, or linen, of him the said Nathaniel Jackson, at the time of his death; all which he doth hereby agree shall be had, received, and enjoyed by the said Mary, her executors, administrators, or assigns.

The marriage took effect on the 9th of February following, and the said Nathaniel Jackson died on the 22d of May next after the articles, without issue and intestate, whereupon the appellant obtained letters of administration.

After his death, the manor of Rookwood Hall in Essex, of £248 per ann. was settled towards the jointure of £300 per anu. and the residue was to be settled when a convenient purchase could be provided; and in the moan time, the residue to make up the £300 per ann. was accounted for in money. The several portions also of £1000 a-piece for the respondent's three daughters were all paid, and the respondent, in pursuance of the articles, received all the household goods and utensils of household stuff in his dwelling-house, rings, plate, jewels, and linen, by which the appellant was advised that the articles were, in every particular, except as to making up the jointure, fully performed.

But it happened, that Mr. Jackson was, before his marriage, and at his death, possessed of an hospital called Fortune Hospital, near Gosport, in the county of Southampton, which he employed in entertaining sick and wounded seamen of the Royal Navy, by contracts with the commissioners; and which, for that purpose, was furnished with near seven hundred beds, and other furniture, suitable only for such a service, and not for private use, and these the [224] respondent laid claim to as household goods, or utensils of household stuff, within the intent of the articles.

Whereupon two several suits were instituted in the Court of Chancery, by the appellant and respondent against each other, for a distribution of the intestate's personal estate, and in order to settle and adjust this claim. And these causes being heard on the 2d of July 1716, before the Lord Chancellor Cowper, it was, inter alia, ordered, that the Master should distinguish what were the proper goods of the intestate, comprised in the marriage articles, and what were the goods in the said hospital belonging to the intestate, and not properly his household goods, and to state the same specially, for the judgment of the Court.

In pursuance of this decree, the Master, on the 16th of June 1725, made his report, and thereby certified, that the said Nathaniel Jackson was possessed of the said Hospital, which was employed for the entertainment of sick and wounded seamen; and for that purpose, he had furnished it with beds, bedding, and other furniture, and so continued it till his death; but whether they should be deemed household goods, or utensils of household stuff, within the intent of the articles, he submitted to the judgment of the Court; and in the mean time, by the consent of all parties, deferred inquiring into the value.

On hearing the special matter of this report, on the 10th of November following, before the Lord Chancellor King, his Lordship declared, that the marriage articles did extend to the household goods, and utensils of household stuff in the said hospital.

From this decree the administrator appealed, and on his behalf it was insisted (P. Yorke, T. Lutwyche), that the goods and utensils in the hospital were made use of by Mr. Jackson in a public business and undertaking, in the nature of a trade, at a place upwards of seventy miles distant from London, where he lived, and where