QJnrtipU IGaui ^rljnnl library 
 
Cornell Universlly Library i^^i 
 
 KD 1509.F63 
 
 ,„ elemeffl trea«se.,on.alaSa, 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022207728 
 
Maxwell on Statutes. 
 
 The Interpretation of Statutes. By Sir Peter Benson Maxwell, late 
 Chief Justice of the Straits Settlements. 8vo. Price 16s. cloth. 1875. 
 
 Maclachlan's Law of Merchant Shipping. Second Edition. 
 
 A Treatise on the Law of Merchant Shipping, By David Maclachlan, 
 M.A., of the Middle Temple, Barrister-at-La\v. Royal 8vo. Price -21. 2s. 
 cloth. 1876. 
 
 The Bankruptcy Act, 1869, and the Debtors Act, 1869, 
 
 Including the Hules, Orders, and Forms, and the Decisions thereon, with 
 oarcful cross references. bY F. Pitt-Taylob, Barrister-at-Law. Crown 8vo. 
 Price 12i. cloth. 1875. 
 
 Yate Lee's (L.) Law and Practice of Bankruptcy. 
 
 The Law and Practiceof Bankruptcy and Imprisonment for Debt, comprisinof 
 the Statutes, General Bnles, and Forms now in usi-, aud incorporating such 
 portion of the Third Edition of the late Mr. Hhelford's Treatise on Hank- 
 ruptcji as is applicable to the present law, and the Jn^lvency, Bills of Sale, 
 and Warrant of Attorney Acts. By LaiVford Yate Lee, of Lincoln's Inn, 
 Esq., Barrister-at-Law. 8vo. Price 1/. 16«. cloth. 1871. 
 
 Dicey's Parties to an Action at Law. 
 
 A Treatise on the Rules for the Selection of i'arties to an Action at Law. 
 By Albert Venn Dicey, Barrister-at-Law, Fellow of Trinity College, 
 Oxford. Price 16s; cloth. 1870. 
 
 " Tlie voluiTP before us is tliat fare production of our time, a .scientific treatise on a specific branch of 
 
 the law It is a work that will be as welcome in tlie County Courts as in the Superior Courts, 
 
 and it is written with the clearness and precision always found where tiie author has thoroughly mastered 
 his subject."— iaMi Times, Nov. 26, isyo. 
 
 Elphinstone's Introduction to Conveyancing. 
 
 A Practical Introduction to Conveyancing, containing the f-=ibstance of Two 
 Courses of Lectures delivered before the Incorporated Law Society in 1869, 
 1870 and 1871. By Howard Wabburton Elphinstone, of Lincoln's Inn, 
 Barrister-at-Law. Crown 8vo. Price 10s. Crf. cloth. 1871. 
 
 "The whole volume is replete with instruction, and cannot be too attentively studied by those to whose 
 care the interests of clients as involved in transfer and n\u: tgr.f^e of p'uperty, ni^, riage settlements, and 
 wills, will be hereafter enttUKted."^/,aic Journal, May 2f-, 1S7I. 
 
 Broom and Hadley's Commentaries. 
 
 Commentaries upon the Laws of England. By Hkrbrbt Bkoom, LL.D., of 
 the Inner Temple, Barrister-at-Law, Professor of Common Law to the Inns of 
 Court, and Edward A. Hadley, M.A., of Lincoln's Inn, Barrister-at-Law, 
 late Fellow of Trinity College, Cambridge. This Work is mainly founded 
 upon Blackstone, the chief aim having been to pi'oduce such a version of his 
 celebrated Commentaries as their author, if now living, would have produced. 
 In 4 vols. 8vo. Price 3/. .3«. cloth. 1869. 
 
 Davidson's Concise Precedents. Tenth Edition. 
 
 Concise Precedents in Conveyancing, adapted to the Act to amend the Law of 
 Real Property, 8 & 9 Vict. c. 106 ; with Practical Notes and Observations on 
 the Act, and on the Act for the Cesser of Attendant Terms. By Charles 
 Davidson, Esq., of Lincoln's Inn, Barrister-at-Law, and late Fellow of 
 Christ's College, Cambridge. 12ino. 1877. 
 
 Williams and Bruce's Admiralty Practice. 
 
 The Jurisdiction and Practice of the High Court of Admiralty, including the 
 Practice on Appeals, with Forms of Pleadings, &c. ; together with a Supple- 
 ment, containing the County Courts' Admiralty Jurisdiction Act, 1868, and the 
 General Orders for Regulating the Practice thereof. By Robert Griffith 
 Williams and Gainsford Bbuce, of the Middle Temple, Esqrs., Barristers- 
 at-Lavv. In 1 vol. 8vo. Price \l. is. cloth. 1869. t 
 
WILLS OF PEBSONAL PBOPERTY. 
 
AN' 
 
 ELEMENTARY TREATISE 
 
 ON THE LAV RELATING TO 
 
 WILLS OF PERSOJ^AL PROPERTY, 
 
 AND SOME SUBJECTS APPERTAINING THERETO. 
 
 BY 
 
 JOHN C. H. TLOOD, 
 
 OF THE MIDDLE TEMPLE, ESQ., TESRISST BIR- AT-LAW. 
 
 A. -^ ■^^ -^^ 
 
 ^ ^ NOV V 
 
 9 ^ 
 
 LONDON : 
 
 WILLIAM MAXWELL & SON, 29, FLEET STEEET, E.G. 
 
 ILato Boaftstlkts anU ^«blisl)ws. 
 
 HODGES, FOSTER, & CO., AND E. PONSONBY, DUBLIN ; 
 
 THACKEE, SPINK, & CO., CALCUTTA; CHARLES F. MAXWELL, 
 
 MELBOURNE. 
 
 1877. 
 
T,OSD0N : 
 , AGNKW, & CO., PRIKTEAS, WHITBFRIAES. 
 
PEEEACE. 
 
 The following treatise was not undertaken, nor has 
 it been published, with the intention that it should 
 compete with, still less supersede, any of the present 
 text-books on the subject of Wills. 
 
 The aim of its author has been to meet an appa- 
 rently existing want, namely, that of an elementary 
 and systematically-arranged work on matters directly 
 and indirectly connected with testamentary disposi- 
 tions of personal property. 
 
 Whether the writer's conjecture as to the need of 
 such a book as that just mentioned be well-founded, 
 or again, whether, — assuming it to be so, — he has 
 here supplied that which he conceived to be required, 
 are questions not for him, but for others to decide. 
 An author is generally, and perhaps not unnaturally, 
 apt to be sanguine concerning the object with, and 
 the manner in, which he executes his self-allotted 
 task ; yet, necessarily, he must really be but an 
 incompetent judge both of the merits and defect^ of 
 his own work. A few observations, however, by the 
 
VI PREFACE. 
 
 writer of a book respecting the general features and 
 aim of his production, will hardly be thought to ex- 
 pose him to a charge of undue enthusiasm or self- 
 complacency. 
 
 Now, the present treatise is in every sense of the 
 word elementary, and whoever may peruse it will 
 perceive that, throughout, no very extensive previous 
 knowledge of the various topics discussed, has been 
 assumed to be possessed by the reader. But the book 
 is not intended to be merely elementary and nothing 
 more ; accordingly, with the view of making it useful 
 to the practitioner, care has been taken to furnish 
 authorities for the majority of the propositions and 
 statements contained therein. The cases have not 
 been heedlessly or needlessly strung together, but an 
 endeavour has been made to collect such as may be 
 termed of a representative character, adapted alike 
 to illustrate general principles and to determine 
 particular points (a). They have for the most part 
 been examined before their insertion ; analyses of 
 several will be found set out, and, it. may be added, 
 concurrent reports which - contain these cases have 
 been indicated in the citations of them, — a feature 
 which it is hoped wiU prove convenient to readers. 
 Dicta and obiter dicta of learned judges have been 
 pressed into the service, for although these are not 
 always to be relied on in attempting to decide a 
 
 (a) Some additional oases of interest, whioh have been decided during the 
 present year, will be found after the Table of Cases. 
 
PREFACE. VU 
 
 case, yet they are frequently of great service in 
 elucidating legal principles. 
 
 The order in which the topics of this book are 
 considered, "will be seen at a glance from the Table of 
 Chapters, and it would appear to be that in which the 
 matters discussed naturally arise. The arrangement 
 of Euclid — who starting with definitions, axioms, and 
 postulates, unfolds a series of propositions, each de- 
 pendent on those preceding it — seems to suggest 
 another method, somewhat analogous to itself, suited 
 to the compilation of a legal treatise. This plan is to 
 begin with a definition, and then trace its terms 
 through the various ramifications into which it may 
 branch out. An attempt — only a feeble one, however, 
 — has been made in the following pages to pursue 
 this mode of treatment, but the difficulty, often 
 amounting to an impossibility, of strictly adhering to 
 it in the course of a long book of this particular 
 design, is almost too obvious to need any statement 
 to such effect. In the First Chapter, the author has 
 adopted the course recommended to writers by Arch- 
 bishop Whately, in his work on Logic, namely, that 
 of commencing a technical work with an analytical 
 outhne of its whole subject. The Chapter on Per- 
 sonalty may be considered out of place, but the reader 
 will see that, throughout, the subject is there viewed 
 in its relation to Wills. 
 
 How much this volume is indebted to others which 
 have preceded it, may be seen from the list of books 
 
Vlll PREFACE. 
 
 that have been consulted during its own prepara- 
 tion ; but the present writer begs to say that in all 
 instances in which he has made use of those works, 
 he has duly acknowledged the fact of having 
 done so. 
 
 In dealing with some of the many topics presenting 
 themselves for notice, it may be thought that the 
 author has more than occasionally digressed into 
 irrelevancy, discursiveness, or repetition, but it is to 
 be remembered that the subject of Wills is probably 
 the most protean and comprehensive in character that 
 a text- writer can essay to expound. No sooner does 
 he enter the arena of operation to search for materials, 
 than he becomes literally staggered by the appearance 
 of the vast and varied mass thereof that lies before 
 him. His difficulty, therefore, lies not in the paucity, 
 but in the overwhelming abundance of the where- 
 with to build up his fabric, which being the case, a 
 writer on Wills, in attempting to grasp too much, is 
 very liable to fall into diffuseness. The author trusts, 
 however, that from the foregoing considerations, and 
 also from the fact that this treatise professes to deal 
 with " subjects appertaining " to its main one, wherever 
 it may be thought that irrelevant matter has been 
 obtruded, examination will show it to be some per- 
 tinent fragment of the mass of materials above 
 mentioned. 
 
 Although this volume ostensibly deals with Wills of 
 Personalty, yet much of its contents will be found 
 
PREFACE. IX 
 
 applicable to devises of Eealty, since all Wills are 
 now on the same footing in regard to the mode of 
 their execution, revocation, and revival, also in so far 
 as they are affected by the rules of evidence, and in 
 some other respects too. At the same time, a devise 
 certainly is an instrument of a character different from 
 a bequest of personal estate, both in regard to its 
 construction, and to the incidents surrounding its 
 operation. And, until the principles of the law of 
 real property are declared by the Legislature to rest 
 no longer upon a feudal basis, but to be assimilated 
 to those which govern personalty, it seems to be not 
 ■altogether illogical to consider Wills of one species 
 of property apart from those of the other. If distinct 
 treatises are devoted to the general examination of 
 these two divisions of property, why should we not 
 apply a similar mode of investigation and exposition 
 to the testamentary dispositions of either? Moreover, 
 the fact that, during the year 1875 the value of such 
 personal property as changed hands through the 
 medium of Wills amounted to no less a sum than 
 £112,601,280, would seem to furnish an excuse, if 
 ■ not a sound reason, for treating of bequests in a 
 separate volume. 
 
 These prefatory observations must not be concluded 
 without an acknowledgment by the present writer of 
 the assistance which he has received during the pro- 
 gress of the following sheets through the press, from 
 two learned friends — Mr. Burnaby, of the Midland 
 
X PREFACE. 
 
 Circuit, and Mr. H. Wyatt Hart, Barrister-at-Law. 
 The former has given much help in the uninteresting 
 task of compiling the index and tables of cases ; 
 the latter in verifying the majority of the references 
 to the reports. 
 
 The author now dismisses his work. It has been 
 the subject of thought and labour for a very long time, 
 but notwithstanding this fact, he sends it forth with 
 considerable difl&dence, and can only hope that its 
 defects may not be too severely regarded by those into 
 whose hands it may come. 
 
 The Temple, London, 
 Aitgust, 1877. 
 
TABLE INDICATING CONTENTS. 
 — > 
 
 PAGE 
 
 PKEFACE . V— X 
 
 LIST OF TEXT-BOOKS AND TREATISES WHICH HAVE BEEN 
 
 CONSULTED IN THE PREPARATION OF THIS WORK . xiii— xvi 
 
 LIST OF REPORTS ' do. do. xvii— xx 
 
 TABLE OF CASES CITED xxi— xxxvi 
 
 ADDITIONAL CASES (1877) . ... xxxvii-xxxix 
 
 ADDENDA ET CORRIGENDA xli— xlii 
 
 TABLE OF STATUTES REFERRED TO . . . See Index. 
 
 CHAPTER I. 
 
 THE SUBJECT VIEWED GENERALLY— DONATIO MOKTIS CAUSA . 1 — 78 
 
 CHAPTER II. 
 
 OF PERSONAL PROPERTY ... ... 79 — 252 
 
 CHAPTER III. 
 
 OF WILLS AND CODICILS 25.3 — 312 
 
 CHAPTER IV. 
 
 THE DUE EXECUTION OF A WILL 313 — 33O 
 
 CHAPTER V, 
 
 OF THE REVOCATION OF WILLS AND CODICILS . . . . 331 — 356 
 
 CHAPTER VI. 
 
 OF THE REVIVAL OF WILLS ... ... 357 366 
 
XU TABLE INDICATING CONTENTS. 
 
 CHAPTER VII. PAGE 
 
 CONOERKING THE TESTAMENTAET POWEK 367 — 412 
 
 CHAPTER VIII. 
 
 OF LOST, MISSING, DESTROYED, AND STOLEN WILLS . . . 413 — 420 
 
 CHAPTER IX. 
 
 OF MUTUAL OE CONJOINT OK EECIPllOCAL WILLS ; JOINT, CONDI- 
 TIONAL, AND CONTINGENT WILLS ; OF CONDITIONS IN ORDINARY 
 WILLS ; WILLS MADE BY INTERROGATORIES AND SHAM WILLS 
 
 430—456 
 CHAPTER X. 
 
 OF EXECUTORS AND ADMINISTRATORS 457 — 663 
 
 CHAPTER XL 
 
 THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION OF THE HIGH 
 COURT OF JUSTICE, WITH A SKETCH OF ITS PRACTICE IN PRO- 
 BATE MATTERS 664—743 
 
 CHAPTER XII. 
 
 ON THE DISTRIBUTION OF AN INTESTATE'S PERSONAL ESTATE UNDER 
 
 THE STATUTE OF DISTRIBUTIONS 744 — 778 
 
 APPENDIX. 
 
 NOTE (a), the case OF "dUFFIELD V. ELWES " 779 
 
 NOTE (e). probate APPEALS FROM THE PROBATE, DIVORCE, AND 
 
 ADMIRALTY DIVISION OF THE HIGH COURT OF JUSTICE . ' . . 780 
 
 THE WILLS ACT, 1838, SET OUT 782 
 
 THE WILLS ACT AMENDMF.NT ACT, 1852 787 
 
 INDEX . . 789—892 
 
LIST OF TEXT-BOOKS AND TEEATISES 
 
 WHICH HAYE BEEN REFERRED TO IN THE COMPILATION 
 OF THIS WORK. 
 
 How died. 
 
 Abbott on Shipping 
 
 Add. Cont. 
 
 Amos & Fer. Fixt. . . . 
 
 Atkinson on Conveyancing. 2nd 
 
 Ed. 
 Austin's Province of Juri.spi'u- 
 
 dence Determined 
 
 Bao. Abr. 
 
 Bentham Princ. Civ. Code . 
 
 Black. Comm. . 
 
 Bracton De Leg. et Consnet. 
 
 Ang. 
 Broom's Com. L. 
 Broom's Leg. Max. . 
 Brown, A. , on Fixtures 
 Browne, G., Prob. Prac. 
 Bullen & Leake. Prec. PI. 
 Bnller's Nisi Prius Practice 
 
 6th Ed., 1793 
 Bum. Ecc. L. . 
 
 Buri\ Law Gloss. 
 
 Butler's Hora? .Inridicaj Subse- 
 
 civae. 1807 
 Byles on BilLs 
 
 Calv. Lex Jurid. . . . 
 
 Chance Pow 
 
 Charley on the Judicature Acts 
 Chitty's Archbold by Prentice 
 Chitty. Gen. Princ. . . . 
 Co. Litt. . 
 
 Com. Dig. . 
 
 Coote on Mort. 
 
 Coote Prob. Prac. . . . 
 
 Coote & Trist. 
 
 Cowell's Interpreter 
 Cripp's Laws of the Clergy 
 Cru Dig. . . ... 
 
 Full titles of the Works of which the 
 abbreviated titles are given. 
 
 Addison on Contracts 
 Amos & Ferard on Fixtures. 2nd Ed., 
 1847 
 
 Bacon's Abridgment. 7th Ed., 1832 
 Bentham's Principles of the Civil Code 
 Blackstone's Commentaries 
 Bracton De Legibus et Consuetudinibus 
 
 Angliae 
 Broom's Common Law Commentaries 
 Broom's Legal Maxims 
 
 G. Browne's Probate Practice 
 
 Bullen & Leake's Precedents of Pleading 
 
 Burn's Ecclesiastical Law, by Phillimore. 
 
 9th Ed., 1842 
 Burrill's Law Glossary (Am.) 
 
 Calvini Lexicon Juridicum (Fo. 1683) 
 Chance on Powers 
 
 Chitty's General Principles 
 
 Coke upon Littleton, by Hargiave & But- 
 ler 
 
 Comyn's Digest 
 
 R. H. Coote on the Law of Mortgage 
 
 H. C. Coote's Probate Practice; 7th Ed. 
 
 H. C. Coote & Dr. Tristram'.s Probate Prac- 
 tice. 4th Ed. 
 
 Cruise's Digest. 2nd Ed,, 1818 
 
XIV 
 
 LIST OF TREATISES REFERRED TO. 
 
 Bow cited. 
 
 Darnell's Chanc. Prac. 
 Deane on the Wills Act, 1838 
 
 Dig 
 
 Dodd & Brook's Probate Prac- 
 tice 
 Domat Civr. L. 
 
 Far. Pow. . 
 Fearne Cont. Rem. . 
 
 Idem 
 
 Fitz-Herbert's Naiura Srevium, 
 by Hale. 1794 
 
 Gen. Rep. of Ecc. Comm. . 
 
 Gib. Cod. Jur. Ecc. Ang. 
 
 Godolph. Orp. Leg. . 
 
 Grady Fixt. 
 
 Grifath on the Married Wo- 
 men's Property Act, 1870. 
 3rd Ed. 
 
 Hale's Pleas of the Crown. Ed. 
 1800 
 
 Hanson on the Probate, Legacy 
 & Succession Duties. 3rd Ed. 
 
 Hargrave Jur. Arg. 
 
 Hayes & Jarman's Forms of 
 
 Wills. 8th Ed. 
 Hayne's Outlines of Equity. 4th 
 
 Ed. 
 
 Inderwick on Wills 
 
 Inns of Court, History of, by 
 
 Rayner (?) 
 Jarman on Wills. 3rd Ed. 
 Jarm. & Bith. 
 Just. Inst. 
 Just. Introd. Dig. 
 
 Kent's International Law, by 
 Abdy 
 
 L. C. Eq 
 
 Lewin on Trusts. 6th Ed. 
 Lindley on Partnership 
 Littleton (Tenures) 
 
 Mack. Civ. L 
 
 Maine's Ancient Law 
 
 Mascall's Digest of the Law of 
 Distribution of Personal Es- 
 tates of Intestates 
 
 Mitford on Pleading 
 
 Full titles of the Works of which the 
 abbreviated titles are given. 
 
 Daniell's Chancery Practice. 5th Ed. 
 
 Justinian's Digest 
 
 Domat's Civil Law (Fo. 1723) 
 
 Farwell on Powers 
 
 Fearne on Contingent Remainders. 8th 
 
 Ed., by Butler 
 by J. W. Smith 
 
 General Report of the Ecclesiastical Com- 
 missioners made before Wills Act, 1838 
 
 Gibson's Codex Juris Ecclesiastici Angli- 
 cani. Ed. 1761 
 
 Godolphin's Orphan's Legacy of Wills, &c., 
 1701 
 
 Grady on Fixtures 
 
 Hargrave's Juridical Arguments and Col- 
 lections 
 
 Jarman & Bithewood's Conveyancing 
 Justinian's Institutes, by Sandars 
 Introduction to Justinian's Digest 
 
 White & Tudor's Leading Cases in Equity. 
 4th Ed. 
 
 Mackeldey Systema Juris Roman! Hodie 
 Usitati 
 
LIST OF TREATISES REFERRED TO. 
 
 XV 
 
 Sow cited. 
 
 Nov. .... 
 
 Off. Exor. 
 
 Paterson's Comp. Eng. & Sc. 
 Law . . . . 
 
 PhiUipps on Eyidence (1843) 
 
 Pothier Traite des Oblig. 
 
 Pow. Dev. . 
 
 Pow. P. . 
 
 Prest. Conv. . . 
 
 Eay on the Medical Jurispm- 
 
 dence of Insanity 
 Roberts on Equity. 2nd Ed. 
 Kop. Hus. & Wife . 
 
 Rop. Leg. . 
 
 Shep. Touch. 
 
 Sm. L. C. 
 
 Sm. Man. Eq. . . . 
 
 Sm. Merc. Law . 
 
 Sm. R. & P. P. 
 
 Snell on Equity 
 
 Spelman's Glossarium Archieo- 
 
 logicum 
 Sp. Eq. Jur. C. C. 
 
 Steph. Comm. . 
 
 Story on Agency 
 
 Sto. Eq. Jur. 
 
 Sug. Pow. .... 
 
 Sweet on a Wife's Separate Estate 
 
 Swinh. 
 
 Tay. Civ. Law 
 Tayl. Evid. 
 Termes de la Loy 
 Toller Exors. . 
 Tudor L. C. 
 
 Vin Abr. . 
 
 Watk. Conv. 
 Went. Off. Ex. 
 
 West Symb. 
 Whart. L. Lex. 
 
 Pull iitUs of the Works of which the 
 ctbbreviated titles are given. 
 
 Justinian's Novels 
 
 Office and Duty of Executors.by Wentworth. 
 
 14th Ed. (a) 
 Paterson's Compendium of English and 
 
 Scotch Law. 2nd Ed. 
 
 Pothier des Obligations 
 Powell on Devises, by Jarman 
 Powell on Powers 
 Preston on Conveyancing 
 
 Roper on the Law of Husband and Wife. 
 
 2nd Ed. 
 Roper on Legacies. 4th' Ed. 
 
 Sheppard's Touchstone of Common As- 
 surances, by Preston (1821) 
 Smith's Leading Oases 
 
 — Manual of Equity 
 
 — Mercantile Law 
 
 — Real and Personal Property 
 
 Spencer's Equitable Jurisdiction of the 
 
 Court of Chancery 
 Stephen's Commentaries 
 
 Story's Equity Jurisprudence 
 Sugden on Powers. 8th Ed. 
 
 Swinburne's Briefe Treatise of Testaments, 
 &c. 
 
 Taylor on Civil Law 
 — on Evidence 
 
 Toller on Executors 
 
 Tudor' s Leading Cases in Real Property 
 and Conveyancing 
 
 Viner's Abridgment 
 
 Watkins on Conveyancing 
 
 Wentworth's Office and Duty of Executors. 
 
 14th Ed. 
 West's Symboleography. 1627 
 Wharton's Law Lexicon. 6th Ed. 
 
 (a) In the preface to the 14th Edition of this celebrated work, we are 
 informed that, "although it bears the name ofWentworth, it is now generally 
 ascribed to Mr. Justice Dodderidge." 
 
XVI 
 
 LIST OF TREATISES REFERRED TO. 
 
 How eited. 
 
 "Wh. & Tu. L. C. in Eq. . . 
 
 Wigram on the Interpretation of 
 
 Wills 
 Wms. Exors. . 
 Wms. P. P. . 
 
 Wms. E. P. . 
 Wms. Saund. 
 Wood Inst. Civ. L. . 
 Wood. Via. Leot. 
 Woodf. Land. & Ten. 
 
 Full titles of the Works of which the 
 abbreviated titles are given. 
 
 White & Tudor's Leading Cases in Equity. 
 4th Ed. 
 
 Williams on Executors. 7tli Ed. 
 J. Williams on Personal Property 
 
 — on Real Property 
 Williams' Saunders 
 Wood's Institutes of the Ciyil Law 
 Wooddeson's Vinerian Lectures 
 Woodfall on the Law of Landlord and Tenant 
 
LIST OF EEPOETS CITED. 
 
 A. & E Adolphus & Ellis, K. & Q. B. 12 vols. 1834-40 
 
 Add. EocRep Addam's Ecclesiastical Reports. 2 toIs. & 1 pt. 
 
 1822-6 
 
 Amb Ambler's Ch. Reports. 2 vols. 1737-84 
 
 And Andrews' K. B. Reports. 1 vol. 1738-40 
 
 Atk Atkyns' Ch. Reports. 3 vols. 1736-65 
 
 B. & Ad Barnewall & Adolphus, K. B. 5 vols. 1830-4 
 
 B. & Aid Barnewall & Alderson, K. B. 5 vols. 1817-22 
 
 B. & C Barnewall & CressweU, K. B. 10 vols. 1822-30 
 
 B. & P Bosanquet & Puller, C.P. 5 vols. 1796-1807 
 
 Beav Beavan, Rolls. 36 vols. 1838-66 
 
 Best&S Best & Smith, Q.B. 10 vols. 1861-69 
 
 BeU's C. C Bell's Crown Cases. 1 vol. 1858-60 
 
 Bing Bingham's Reports, C. P. 10 vols. 1822-34 
 
 Bing. N. C Bingham's New Cases. 6 vols. 1834-40 
 
 Bli^ (S. S.). . . Bligh's House of Lords Cases. New Series. 10 
 
 vols. 1827-37 
 
 Bro. C. C Brown's Chancery Cases. 4 vols. 1778-94 
 
 Bro. P. C Brown's Parliamentary Cases, by Tomlins. 8 vols. 
 
 1702-1800 
 
 Bro. & Bing Broderip & Bingham, C.P. 3 vols. 1819-22 
 
 Bulst Bulstrode, K.B. 1 vol. 1609-39 
 
 Burr Burrow, K.B. 5 vols. 1757-71. 
 
 Car. & Kir Carrington & Kirwan, Nisi Prius. 2 vols., pt. 
 
 vol. 3. 1843-50 
 Garth Carthew's K. B. Reports. 1 vol., fo. 1686—1701 
 
 C. B Common Bench. 18 vols. 1845-56 
 
 C. B. (N. S.) . . . . Common Bench. New Series. 20 vols. 1856-65 
 C. & F. (or CI. & F.) . . Clark & Finnelly, House of Lords Cases. 12 
 
 vols. 1831-46 
 
 Ch. Ca Cases iu Chancery. 1 vol. 1660-88 
 
 Coll. C. C CoUyer's Ch. 2 vols. 1844-45 
 
 Conn Connecticut (Am.) 
 
 Co. Rep Coke's Reports, Q. & K. B. 6 vols. 1572- 
 
 1616 
 
 Cowp Cowper, K. B. 2 vols. 1774-78 
 
 Cox Cox's Criminal Law Cases. 12 vols. 1843-72 
 
 Cr. & J Crompton & Jervis, Exch. 2 vols. 1830-2 
 
 C. M. & R Crompton, Meeson & Roscoe, Exch. 2 vols. 
 
 1834-6 
 
 Cr. & Ph Craig & Phillips, Chanc. 1 vol. 1841 
 
 Cro. Car. "1 Croke (temp. Eliz., James & Charles). 4 vols. 
 
 Cro. Eliz. J • • • • 1581-1641 
 
 Curt Curteis' Ecclesiastical Reports. 3 vols. 1834-44 
 
 D. & War. . . . . Di-ury & Warren (Ir). 4 vols. 1841-43 
 
xvm 
 
 LIST OF REPORTS CITED. 
 
 Dea. & Sw! 
 
 De G. F. & J. 
 De G. & J. 
 De G. J. & S. 
 
 De G. M. & G. 
 
 De 6. & S. . 
 Den. C. C. . 
 Dick. . . . 
 Doug. . . 
 Dow. . . . 
 Dow. & Clark 
 Dowl. &. Ry. 
 Drew. . . 
 Dr. & S. 
 Dru. . . . 
 Dyer . . . 
 
 E. & B. . . 
 
 East. . . 
 Eden. . . 
 Eq. Ca. Abr. 
 Exch. Rep. 
 Ex. 
 
 Deane & Swabey, Ecclesiastical Reports. 1 vol. 
 
 1855-7 
 De Gex, Fisher & Jones, Chanc. 4 vols. 1860-2 
 De Gex & Jones, Chanc. 4 vols. 1857-60 
 De Gex, Jones & Smith, Chanc. 4 vols. 
 
 1862-6 
 De Gex, Macnaghten & Gordon, Chanc. 8 vols. 
 
 1851-7 
 De Gex & Smale, Chanc. 5 vols. 1846-52 
 Denison's Crown Cases. 2 vols. 1844-52 
 Dickens, Chanc. 2 vols. 1559-179'8 
 Douglas, K.B. 4 vols. 1778-84 
 Dow, House of Lords. 6 vols. 1812-18 
 House of Lords. 2 vols. 1827-32 
 Dowling & Ryland, Nisi Prius. 1 pt. 1822-3 
 Drewry, Chanc. 4 vols. 1852-9 
 Drewry & Smale, Chanc. 2 vols. 1860-5 
 Drury's Irish Reports, Chanc. 1 vol. 1843-4 
 Dyer, K. & Q. B. 3 vols. 1513-82 
 
 EUis & Blackburn, Q. B. 8 vols. 1852-8 
 K. B. 16 vols. 1801-12 
 Chancery. 2 vols. 1767-67 
 Equity Cases Abridged. 2 vols. 
 Exchequer Reports (by Welsby, Hurlstone & 
 Gordon). 11 vols. 1847-56 
 
 Freem. 
 
 Freeman's Chancery. 1 vol. 1660-1706 
 
 Giff. 
 
 Giffard, Chancery. 5 vols. 1857-65 
 
 H. Bl. ... 
 H. & C. 
 
 H. & K. . . . 
 Hagg. Ecc. Rep. 
 
 Hare. ; . . 
 Hem. & M. . 
 Hetley. ; . 
 Hob. . . . 
 Holt. . . . 
 Howard's IT. S. 
 H. L. Cas. ) 
 H. L. I 
 
 Ir. Rep. > 
 Ir. Eq. Rep. j 
 
 Rep. 
 
 J. & H. . . 
 Jacob's Rep. 
 Jo. & Lat. 
 Johns. 
 
 Jur. . . . 
 Jur. (N. S.) 
 
 Kay. . 
 Kav & J. 
 Keb. . 
 Keen . . 
 
 Henry Blackstoue, C. P. 2 vols. 1788-96 
 Hurlstone & Coltman, Exch. 4 vols. 1862-5 
 Hurlstone & Norman, Exch. 7 vols. 1856-61 
 Haggard's Ecclesiastical Reports. 3 vols. & pt. 
 
 vol. 4. 1827-33 
 Chancery. 11 vols. 1841-53 
 Hemming & Miller, Chancery. 2 vols. 1862-5 
 C. P. 1 vol., fo. 1627-32 
 Hobart's Reports, K. B. 1 vol., fo. 1603-25 
 K. P. 1 vol. 1815-17 
 Howard's United States Reports. 
 Clark's House of Lords Cases. 11 vols. 1847- 
 
 Irish Equity Reports. 
 
 Johnson & Hemming, Chancery. 2 vols. 1862-65 
 Jacob's Reports, Chanc. 1 vol. 1821-2 
 Jones & Latouche, Ir. Ch. 3 vols. 1844^6 
 Johnson, Chancery. 1 vol. 1859 
 Jurist Reports. 31 vols. 1837-54 
 Jurist. New Series. 12 vols. 1855-66 
 
 Chancery. 1 vol. 1853-4 
 Kay & Johnson, Chancery. 4 vols. 
 Keble, K. B. 3vols., fo. 1661-79 
 Chancery. 2 vols. 1836-8 
 
 1854-8 
 
LIST OF EEPORTS CITED. 
 
 XIX 
 
 L. J. Law Journal * 
 
 L. J. (0. S.) Law Jour- 
 nal (Old Series) 1822- 
 31 
 
 L. R. Law Eoports . 
 (commencing from 
 Mich. Term, 1865). 
 
 • Ch. Chancei'y 
 
 Q. or K. B. Queen's or Kiiig's Bench 
 
 C. P. Common Pleas 
 
 Exoh, Exchequer. 
 
 P. C. Priyy Council 
 
 M. C. Magistrates' Cases 
 
 Bank. Bankruptcy 
 
 N. Cas. Notes of Cases 
 
 P. & M. or P. & D. Probate & Matrimonial or 
 
 Probate & Divorce 
 H. L. House of Lords 
 Ch., or Ch. App., or E. & I. App., or Ch. Div. 
 
 App. Chancery Appeals 
 Eq., or Ch. Div., or Ch. Div. (N. S.) since 1875. 
 
 Cases in Courtof Chancery,or Chancery 
 
 Division High Court of Justice, in first 
 
 instance 
 Q. B. Queen's Bench 
 C. P. Common Pleas 
 Exch. Exchequer 
 P. & D. Probate & Divorce 
 
 \^ 
 
 L T. . . . 
 Lee Ecc. Eep. 
 
 Lev. . . . 
 Lutw. . . 
 
 M. & S. . 
 M. &W. 
 Mac. & Gor. 
 
 P. & D. (N". S.) Probate & Divorce (New 
 Series since Jud. Act) 
 
 N.B. The Law Reports from Jan. 1, 1876, are 
 cited in this book as L. R. (N. S.), but the author 
 is not prepared to maintain that this is the conect 
 mode of citation. However, it is one that cannot 
 present much difficulty to, or mislead, the reader. 
 Law Times Reports. New Series 
 Lee's Ecclesiastical Eepoi-ts, by PhiEimore. 2 vols. 
 
 1752-8 
 Levinz', K.B., Reports. 3 vols. 1660-1697 
 Lutwyche, Common Pleas. 2 vols., fo. 1682-1704 
 
 Manle & Selwyn, K. B. 6 vols. 1813-17 
 Meeson & Welsby, Exch. 16 vols. 1836-1847 
 Macnaghten & Gordon, Chancery. 3 vols. 
 
 1849-51 
 Macqueen's House of Lords Scotch Appeals. 4 
 
 vols. 1851-65 
 Maddock, Chancery. 6 vols. 1815-22 
 Merivale, Chancery. 3 vols. 1815-17 
 Milward's Ecclesiastical Reports (Irish). 1 vol. 
 
 1819-43 
 Modem Reports. 12 vols. 1669-1732 
 Montagu & Ayrton, Bankruptcy. 3 vols. 
 
 1833-8 
 Montagu, Deacon & De Gex, Bankruptcy. 3 
 
 vols. 1840-4 
 Moore's Privy Council Cases. 15 vols. 1836-62 
 Moore's Common Pleas Reports. 12 vols. 
 
 1817-27 
 Moseley, Chancery. 1 vol. 1726-31 
 Mylne & Craig, Chancery. 5 vols. 1836-40 
 Mylne & Keen, Chaacery. 3 vols. 1833-5 
 
 N^- C. Notes of Cases in the Ecclesiastical & Maritime 
 
 Courts. 7 vols. 1841-50 
 N. C. Suppl Supplement to the above 
 
 * In citing the Law Journal, the New Series (N. S.) is always referred to, 
 unless stated to be Old Series (0. S.) 
 
 ■c 2 
 
 Macq. H. L. Cas. . 
 
 Madd. . . . 
 Mer. . . . 
 MOward's Ecc. 
 
 Eep. 
 
 Mod. Rep 
 
 Mont. & Ayr. . . . 
 
 Mont. Dea. & De G. 
 (Bank.) 
 
 Moo. P. C. C 
 
 Moore, B. I 
 
 Moore. C. PI. Rep. J ■ 
 
 Mos. Cas 
 
 Myl. & Cr 
 
 MyL & K 
 
XX LIST OF REPORTS CITED. 
 
 N. E. .:.... New Reports (all Courts). 4 vols. 1862-4 
 Nev. & Man Neyille & Manning, K. B. .6 vols. 1831-6 
 
 Owen K. & Q. B. 1 vol., fo. 1566-1615 
 
 P. "Wms Peere Williams, Chancery. 2 vols. 1695-1736 
 
 Peake's N. P. Cas. . . . Peake, Nisi Prius. 2 vols, 1790-1812 
 
 PhiU. C. C Phillips, Chancery. 2 vols. 1841-9 
 
 Phillim. Eoo. Rep. . . . Phillimore, Ecclesiastical Reports. 3 vols. 
 
 1809-21 
 
 Plowd Plowden. 2 vols. 1550-80 
 
 Prec. Chanc Finch's Precedents in Chancery. 3 vols. 1689- 
 
 1723 
 Price Price, Exchequer. 13 vols. 1814-24 
 
 Q. B. 1 Queen's Bench, Adolphus & Ellis. New Series. 
 
 Q. B. (A. & E. N. S.) J 18 vols. 1841-52 
 
 R. & R Russell & Ryan, Crown Cases. 1 vol. 1799-1823 
 
 Raymond (Lord) ... K. B. 3vols.,fo. 1694-1734 
 
 Rob. Adm. Rep. . . . Eohinson's Admiralty Reports. 3 vols. 1838-52 
 
 Rob. Eco. Rep Robertson's Ecclesiastical Reports. 1 vol., and 
 
 vol. 2., pts. 1, 2, 3. 1844-51 
 
 Russ. ...... Russell, Chancery. 5 vols. 1826-9 
 
 Russ. & Myl Russell & Mylne, Chanceiy. 2 vols. 1829-31 
 
 SaUc Salkeld, K. & Q. B. 3 vols. 1689-1712 
 
 Schoales & Lefroy (Ir. ) . Schoales & Lefroy, Irish Chancery. 2 vols. 
 
 1802-6 
 
 Sim Simons, Chancery. 17 vols. 1826-49 
 
 Sim. (N. S.) Simons (New Series), Chancery. 2 vols. 
 
 1850-2 
 
 Sim. & Stu Simons & Stuart, Chancery. 2 vols. 1822-6 
 
 Sm. & Gif. Smale & Giffard, Chancery. 3 vols. 1852-7 
 
 Spinks Ecclesiastical & Admiralty. 2 vols. 1853-5 
 
 Strange Strange's Reports (various). 2 vols. 1716-49 
 
 Sw. & Tr Swabey & Tristram, -Probate & Divorce. 4 vols. 
 
 1858-65 
 Swanst Swanston, Chancery. 3 vols. 1818-9 
 
 T. R Tenn Reports, or Dumford & East, K. B. 8 vols. 
 
 1785-1800 
 
 Taunt Taunton, C. P. 8 vols. 1808-19 
 
 Turn. & Russ Turner & Russell, Chancery. 1 vol. 1822-4 
 
 Tyrrwh Tyrrwhit, Exchequer. 5 vols. 1830-5 
 
 Vent Ventris, K. B. 1 vol., fo. 1668-91 
 
 Vem Vernon, Chancery. 1 vol. 1681-1720 
 
 Ves. & Bea Vesey & Beames, Chancery. 3 vols. 1812-14 
 
 Ves., jun Vesey (junior), Chancery. 22 vols. 1789-1816 
 
 i' GS S6I1 1 
 
 Yea]' '/•••■ '^ssey (senior). Chancery. 3 vols. 1747-56 
 
 "W. R Weekly Reporter. 22 vols. 1853-73 
 
 Wightwick's Rep. . . . Exchequer Reports. 1 vol. 1810-11 
 
 Wiunot Wilmot's Notes and Opinions. 1 vol., 4to 
 
 1757-70 
 Wilson & Shaw . . . . House of Lords Appeals (Sc. ). 2 vols. 1832-4 
 
 Yo. & CoU. Ch. Ca. . . Younge & Collyer, Chancery. 2 vols. 1841-3 
 Yo. & Coll. Ex. C. C. . . Younge & Collyer, Exchequer (Equitv) Cases 
 
 4 vols. 1833-41 
 Yo. & Jer Younge & Jervis, Exchequer. 3 vols. 1826-30 
 
TABLE OF CASES («). 
 
 Aaron v. Aaron, 257 
 Abbott V. Abbott, 736, 738 
 
 — V. Middleton, 509, 610, 511, 
 
 527 
 
 — V. Parfitt, 594, 596 
 Ackroyd v. Smithson, 49, 766 
 Adams, In the goods of, 269 
 
 — V. Adams, 531 
 Adamson, In tbe goods of, 561 
 
 — V. Armitage, 211 
 Advocate-General v. Smith, 49, 610 
 Ainsworth, In the goods of, 323 
 Alder v. Lawless, 49 
 
 Aldrich V. Cooper, 503 
 Aleyn v. Belohier, 294 
 Alford V. Alford, 694 
 Alger V. Parrott, 93, 656 
 Allen V. Allen, 86 
 
 — V. Dundas, 670 
 
 — V. Jackson, 446 
 
 — V. McPherson, 409, 410 
 
 — V. Haddock, 253, 265, 268, 270, 
 
 361, 364 
 Alton V. Midland Railway Co., 187 
 Amies v. Skillem, 518 
 Amis V, Witt, 9 
 
 Amiss, In the goods of, 313, 330 
 Ancaster v. Mayer, 224 
 Anderson, In the goods of, 704 
 
 — V. Anderson, 362 
 Andrew, In the goods of, 342, 343 
 
 — V. Andrew, 7, 448 
 
 — V. Motley, 334 
 Androvin v. Poilblano, 72 
 Andsley v. Horn, 550 
 Antrobus v. Smith, 8 
 Armory v. Delamire, 23 
 Arnold v. Ai'nold, 149, 241 
 Arthur, In the goods of, 323 
 Ashburner v. Macguire, 212, 332, 486 
 Ashmore, In the goods of, 314 
 *Ashley v. Ashley. 
 
 AshweU's "Will, He, 201, 202 
 
 Asthury, Sx parte, 99 
 Atkinson v. Barnard, 704, 706 
 Atter V. Atkinson, 318, 393 
 Att.-Gen. v. Abdy, 631, 632 
 
 — u. Baker, 632 
 
 — V. Bouwens, 604 
 
 — V. Brunniug, 603 
 
 — -0. CampbeU, 611, 612, 615 
 
 — D. Cavendish, 618 
 
 — J). Charlton, 630 (5) 
 
 — D. Downing, 289 
 
 — V. Fitzjohn, 610, 621 
 
 — V. Fletcher, 617 
 
 — V. Forbes, 612 
 
 — V. Hertford, 628 
 
 — V. Holbrook, 50, 618 
 
 — V. Ironmongers' Co., 444 
 
 — V. Jackson, 49, 205, 611, 612 
 
 — V. Johnstone, 504 
 
 — V. Littledale, 609 
 
 — V. Lomas, 604 
 
 — V. Middleton (Lord), 619, 621 
 
 — V. Napier, 242, 611 
 
 — V. Pickard, 628 
 
 — V. Potttoger, 235, 240 
 
 — V. Pratt, 604 
 
 — V. Scott, 284 
 
 — V. Upton, 630 
 
 — V. "Wood, 617 
 Attree v. Attree, 156, 498 
 Aubin V. Daly, 60, 195 
 *Austin V. Austin. 
 
 * — v. Boyce. 
 Ayles' Trusts, In re, 494 
 Ayrey v. HiU, 392 
 
 B. 
 
 Badart's Trusts, In re, 612, 613, 
 
 614 
 Badenach, In the goods of, 691 
 Bagwell V. Dry, 778 
 Bailey, In the goods of, 395 
 
 — V. Merrell, 399 
 
 (a) The cases in this Tahle marked with an " are those which are appended 
 hereto as ' ' Additional Cases. " See post, p. xxxvii. 
 
 (b) Affirmed in Court of Appeal, July 2, 1877. 
 
xxu 
 
 TABLE OP CASES. 
 
 Bailey v. "Wright, 710 
 
 Baily, In the goods of, 270, 342 
 
 Bain v. Lescher, 778 
 
 — V. Sadler, 229, 230 
 Baker v. Batt, 400 
 
 — 1). Dening, 313 
 Banks v. Goodfellow, 387, 388 
 Barber, Ex parte, 173 
 
 — In the goods of, 415, 421 
 
 — V. Barber, 518, 519, 521 
 Barden, In the goods of, 64, 670 
 Barnaby v. Tasaell, 145, 751 
 Barnes v. Patch, 512 
 
 — V. Kowley, 203 
 
 — V. Vincent, 383, 559, 560 
 Barnsby «. Powell, 410 
 
 Barr ii. Carter, 370 
 Barrow v. Barrow, 424 
 Barrs v. Fewkes, 497 
 Barry v. Butlin, 399 
 
 — ■«. Harding, 161 
 Barton v. Robins, 394 
 Bate V. Payne, 618 
 Bateman, In the goods of, 711 
 
 — V. Pennington, 269 
 Batstone v. Salter, 764 
 Bayley v. Bishop, 203, 205 
 Bay lis. In the goods of, 562 
 Beak v. Beak, 10, 12, 14 
 
 « Beak's Estate, In re, 12, 14 
 Beale v. Symonds, 221 
 Beard «. Beard, 20 
 Beasney's Trusts, In re, 742 
 Beck's Trusts, In re, 527 
 
 — V. Rebow, 645, 647 
 Beckett v. Howe, 318, 319, 320 
 Beckham v. Drake, 183 
 *Beckwith v. Beckwith. 
 
 Bective, Earl of, v. Hodgson, 502, 
 
 504 
 Beevor v. Luck, 220 
 Begbie v. Fenwick, 649 
 Belbin v. Skeates, 675 
 
 — V. "Ward, 417 
 Belchier v. Butler, 220 
 BeU V. Fothergill, 344 
 
 — V. Kennedy, 237 
 
 — 1). Timiswood, 702, 703 
 Bellew V. Bellew, 729 
 Bennet v. Davis, 372, 373 
 Bent V. Cullen, 200, 203, 211 
 Bensley v. Burdon, 181 
 
 Bernard v. MinshuU, 164, 165, 287, 
 
 504 
 Bernasconi v. Atkinson, 359 
 Bertie ». Falkland, 437 
 Bescoby v. Pack, 162 '• 
 
 Best's Settlement Trusts, In re, 556 
 Billinghurst v. Vickers, 392, 393, 400 
 Binckes, In the goods of, 727 
 
 Birch v. Dawson, 87 
 
 — V. Sherratt, 50 
 Bird V. Harris, 497 
 Birkett v. "Vandercom, 370 
 Bishop, In the goods of, 742 
 
 — V. Curtis, 178 
 
 — D. Elliott, 85 
 
 Black V. Jobling, 258, 339, 424, 734 
 Blackborough v. Davis, 699, 700, 705, 
 
 707, 767 
 *BlackwcU, In the goods of. 
 Blades v. Higgs, 140, 142 
 Blake's Trust, In re, 494 
 
 — V. Blake, 305 
 Blandford v. Marlborough, 278 
 Blewitt V. Roberts, 199, 200, 211 
 Bligh V. Brent, 160 
 
 Blount V. Burrow, 2, 5 
 Blower's Trusts, In re, 505 
 Boddicott V. Hamilton, 563 
 Body, In the goods of, 414 
 Bolingbroke v. Kerr, 688, 596 
 Bolton V. Tomline, 132 
 Boon V. Cornforth, 146 
 Booth V. Coulton, 49 
 
 — i>. "Vicars, 656 
 Beetle, In the goods of, 670 
 Boughton V. Knight, 386, 387, 388 
 Bourget, In the goods of, 61, 388 
 Bouts V. Ellis, 13, 20 
 
 Bowers v. Bowers, 537, 538 
 Boxley v. Stubington, 688 
 Boyd V. Boyd, 770 
 
 — V. Shorrock, 98, 649 
 Boyse v. Rossborough, 404, 409 
 Brackenbury, In the goods of, 763 
 Bradley v. Peixoto, 445 
 Bradshaw & "Wife v. Lancashire & 
 
 Yorkshire Railway Co., 187 
 Brady v. Cubitt, 55 
 Brandon v. Brandon, 698 
 
 — V. Robinson, 374 
 Brandreth v. Brandreth, 678 
 Braybrooke, Lord, v. Att.-Gen., 628 
 Brenchley v. Lynn, 61, 302, 558, 560 
 Brett V. Brett, 328 
 
 Brewin, In the goods of, 265 
 Brice v. Stokes, 521, 565 
 Bridges ii. Hawkesworth, 23 
 Bridgman v. Dove, 154 
 Bridgnorth, Corporation of v. Collins, 
 
 646 
 Briers v. Goddard, 725 
 Briggs V. Penny, 286 
 
 — V. Upton, 556 
 Britton v. 'Twining, 478 
 Bromley v. Brunton, 10, 11, 12 
 Brook V. Brook, 75 
 
 Brooke v. Kent, 332, 345, 346 
 Broughton v. Broughton, 686 
 
TABLE OF CASES. 
 
 xxm 
 
 Brown's Trusts, In re, 493, 494 
 *Brown, In the goods of. 
 
 — V. Brown (American case), 2 
 , — V. Brown, 419 
 
 — V. Famdale, 707 
 
 — V. Gellatley, 289 
 
 — 0. Higgs, 285 
 
 — V. Lake, 475 
 
 — -0. Peck, 434 
 
 — 1). Wadman, 710 
 
 — n. Wood, 707 
 Browne v. Hope, 481 
 Browning, In the goods of, 703 
 
 — V. Budd, 399, 400 
 Brownson v. Lawrence, 217 
 Bruce, In re, 242 
 iSrumridge v. Brumridge, 565 
 Bryan v. Twigg, 522 
 
 — V. White, 314, 316 
 Bryson v. Brownrigg, 28, 30 
 Bucklandw. Butterfield, 101, 110, 655 
 Buckley v. Barber, 575 
 
 Budd V. Silver, 706 
 BufTar v. Bradford, 686 
 Bullar, In the goods of, 714 
 Bullock V. Downfes, 521, 699 
 Bulteel V. Plummer, 293 
 Bulwer V. Bulwer, 106 
 Bunn V. Markham, 2, 28, 29, 30, 38 
 Burhidge v. Burbidge, 157 
 BuTch, In the goods of, 714 
 Burchett v. Durdant, 73 
 Burgoyne v. Showier, 315 
 Burls V. Burls, 415, 736 
 BurreU, In re, \ , „„ 
 
 — V. Smith \ "" 
 Burton v. Newbery, 361 
 Butler & Baker's case, 4 
 
 — «. Cumpston, 371 
 
 Byng V. Byng, 146, 359, 514, 550 
 ■^ V. Lord Strafford, 116 
 
 Cadbll v. Palmer, 291 
 
 — V. Vere, 133 
 Cadman v. Cadman, 498 
 Cage V. EusseU, 441 
 Caldecott v. Harrison, 544 
 CaBanane v. Campbell, 613 
 Cambridge u. Eous, 165, 497, 499, 
 
 504 
 CampheE, In re, 736 
 
 — V. Campbell, 52 
 
 — V. Lucy, 412, 670 
 
 — V. Prescgtt, 162, 153,. 155 
 Candy v. Campbell, 641 
 Capdevielle, In re, 614 
 Caplin's Will, In re, 289, 290 
 
 Carmichael v. Carmiehael, 575 
 Can-, In the goods of, 692 
 
 — V. Burdis, 4 
 
 — V. Carr, 227 
 Carte v. Carte, 717 
 Cartwright v. Gartwright, 388 
 
 — V. Vawdry, 493 
 Casbome v. Scarfe, 129 
 Casement v. Fulton, 314 
 Casmore, In the goods of, 316 
 Cassidy, In the goods of, 716, 720 
 Cautley, Ex parte, 172 
 Chamberlain v. Williamson, 189 
 Chapman, In the goods of, 358 
 
 — V. Chapman, 145 
 Chappell, In the goods of, 562 
 
 — V. Chappell, 694 
 Charge v. Goodyer, 645 
 Charlton v, Coombes, 446 
 
 — V. Earl of Durham, 565 
 
 — V. Hindmarsh, 61, 321 
 Charter v. Charter, 369, 492, 496 
 Chatfield v. Berchtoldt, 242, 616 
 Chester's, Lady, case, 310 
 Chichester v. Coventry, 62 
 Childers, ex gr. v. Childers, 4 
 Childley (app. ) v. Churchwardens of 
 
 West Ham, 92, 111 
 Cholwill, In the goods of, 736 
 Christmas v. Whinyates, 331 
 Christopherson v. Ifaylor, 531, 534, 
 
 536 
 Churchill V. Bank of England, 214 
 Clare v. Hodges, 720 
 Clark, In the goods of, 329, 330 
 
 — In re, Ex parte Davis, 284 
 Clark's Trusts, In re, 444 
 
 ■ — v. Jacques, 375 
 *Clarke, In the goods of. 
 
 — ■». Clemmans, 507 
 
 — u. Cookson, 412 
 
 — v. Parker, 440, 441, 442 
 
 — V. Scripps, 332, 335, 336 
 Clarkington, In the goods of, 712 
 Clarkson v. Clarkson, 334 
 Cleare v. Cle»rp, 318, 393 
 Clegg V. Eowland, 474 
 Clifford V. Anmdell, 167 
 Climie v. Wood, 98 
 Clogstoun V. Woleott, 424 
 *Close, Ex parte. Me Bennett. 
 Clough V. French, 225 
 'Clowes V. Billiard. 
 
 Coard v. Holderness, 150 
 Cockayne v. Harrison, 7 
 Cogan V. DufBeld, 278 
 Coggs V. Bernard, 143 
 Colberg, In the goods of, 340 
 Cole V. Fitzgerald, 164 
 * — V. Hawes. 
 
XXIV 
 
 TABLE OF CASES. 
 
 Coleby v. Coleby, 217 
 Colegrave v. Bias Santos, 98, 647 
 Coleman v. Bathurst, 141 
 
 — V. Coleman, 414 
 
 Coles, In the goods of, 304, 563 
 Collier, In the goods of, 720 
 Collins V. Collins, 159, 163, 168 
 
 — V. Lewis, 503 
 Colquhoun, In the goods of, 569 
 Colston V. Morris, 807 
 Coltman v. Gregory, 508 
 Colyer v. Finch, 588 
 Comber's case, 689, 692 
 Commercial Bank of Scotland o. 
 
 Ehind, 15 
 Conyers v. Kitson, 694 
 Cook, In re, 307 
 
 — V. Beynon, 633 
 
 — c Cook, 550 
 
 — V. De Vandes, 516 
 
 — V. Gregson, 130, 214 
 
 — V. Lambert, 325 
 Coombe v. Trist, 617 
 Cooper V. Beckett, 314, 320 
 
 — V. Day, 623 
 
 — V. Woolfltt, 123 
 Coore V. Todd, 212 
 Coote V. Lowndes, 217 
 Cordeux v. Trasler, 703 
 Comeby v. Gibbous, 323 
 Comewall v. CornewaE, 154 
 Cornwallis, Earl, In re, 206, 624 
 Corporation of Bridgnorth v. CoUins, 
 
 545 
 Corser, In the goods of, 696, 704, 711 
 
 — 'i>. Cartwright, 460, 588 
 Cosnahan v. Grice, 2, 42 
 Cottle V. Aldrich, 579, 580 
 Cotton V. lies, 222 
 Coulthurst V. Carter, 533 
 Counden v. Gierke, 73 
 Court V. Buckland, 498 
 Coventry v. Chichester, 58 
 Coward, In the goods of, 395 
 Cowell V. Watts, 594 
 Cowling V. Cowling, 160 
 
 Cragie v. Lewin, 234, 237, 238, 240, 
 
 243 
 Crawford's Trusts, in re, 93 
 Cray v. Willis, 686 
 CressweU «. Cresswell, 328 
 Crichton v. Symes, 145, 165 
 Cripps V. Wolcott, 528, 529, 530 
 Crispin V. Doglioni, 248, 249 
 Croft V. Croft, 315, 324 
 Crook V. Hill, 492, 493 
 
 — V. Whitley, 505 
 Crosby v. MacDoual, 361 
 Cross V. Eobinson, 49 
 
 — V. Wilkes, 152 
 
 Crossly v. Clare, 698 
 Crossley v. Elworthy, 6 
 Crow u Nesbitt, 208, 209 
 Cudden v. Cudden, 633 
 Curling v. Thornton, 243 
 Curry v. Pile, 487 
 
 Cutto V. Gilbert, 331, 333, 334, 335, 
 337, 361, 671 
 
 D. 
 
 Daglish, Ex parte, Re Wilde, 649 
 
 Dalhousie v. M'Douall, 239 
 
 Dampier v. Colson, 708 
 
 Dancer v. Crabb & Thompson, 342, 
 352 
 
 Darbison v. Beaumont, 73 
 
 Darley v. Langworthy, 438. 
 
 Darlow v. Edwards, 203 
 
 Darrel ■». Molesworth, 532 
 
 Dashwood v. Bulkeley, 476 
 
 Davenport v. Stafford, 582 
 
 (i.) Davies, In the goods of, 313 (ax;- 
 knowledging execution of WiU 
 by gestures. ) 
 
 (ii.) Davies, In the goods of, 722 (ad- 
 ministration durante absentid). 
 
 Davies i'. Thorns, 290, 499, 519, 535 
 
 Davis, Ux parte j In re Clark, 284 
 
 — In the goods of, 573 
 
 — V. Chanter, 718 
 
 — V. Davis, 413, 729, 732, 733 
 
 — 1). Eyton, 121 
 
 — V. Jones, 99, 103 
 Davy, In the goods of, 358 
 Dawson v. Oliver Massey, 445 
 Day V. Day, 203, 211 
 
 Dean v. Gibson, 150, 494, 507 
 Dearie v. Hall, 207, 208, 209 
 De Beauvoir v. De Beauvoir, 200 
 De Bonneval v. De Bonneval, 243 
 De Chatelain v. Pontigny, 560 
 Deeks v. Strutt, 44 
 De Garagnol v. Liardet, 525 
 Deichman, In the goods of, 566 
 Deighton's Settled Estate, In re, 479 
 De Lancey «. Com. of Inland Revenue, 
 
 49 
 *Dempsey v. Lawson. 
 *Deuch V. Dench. 
 Denny v. Barton, 256 
 De Pontes v. Kendall, 334 
 De Pradel, In the goods of, 559 
 De Eochefort v. Dawes, 218 
 ""De Eosaz, In the goods of 
 Deshais, In the goods of, 248 
 De Vigny, In the goods of, 248 
 Dew V. Clark, 388, 389, 390 
 De Witte v. De Witte, 522 
 
TABLE OF CASES. 
 
 XXV 
 
 D'Eyncourt v. Gregory, 90, 91, 111, 
 
 646, 657, 658, 659, 663 
 Dickenson v. Swatman, 361 
 Dickins, In the goods of, 6 
 Dickinson v. The North-Eastern 
 EaUway Co. 185 
 
 — V. Stidolph, 268 
 DUlces, In the goods of, 313 
 Dimes v. Dimes, 388 
 Dixon V. Dixon, 376 
 Dobson, In the goods of, 432 
 
 — V. Bowness, 149 
 Dodgson, In the goods of, 717 
 Doe V. Burdett, 260 . 
 
 — dem. Andrew v. Lainchbury, 
 
 152 
 
 — dem. Gamons v. Knight, i 
 
 — dem. Guest v. Bennett, 178 
 
 — dem. Hickman v. Haslewood, 
 
 65 
 
 — dem. Leicester v. Biggs, 496 
 
 — dem. Reed v. Harris, 345 
 
 — dem. ShaUcross v. Palmer, 347 
 
 — dem. Wickham v. Turner, 511 
 Dolphin «. Eobins, 240 
 Doncaster v. Doncaster, 116 
 
 Dorin v. Dorin, 493, 494 
 Douglas V. Cooper, 558 
 
 — V. Douglas, 239 
 
 — V. Webster, 239 
 Douse, In the goods of, 321 
 Downing v. Townsend, 159 
 Dowson V. Gaskoin, 163, 498 
 Drake v. Drake, 505 
 Driver v. Driver, 512 
 Drummond, In the goods of, 670 
 
 — ■„. Parish, 271, 272, 274, 669 
 Drury v. Smith, 14, 27, 28, 30 
 Dudley v. Warde, 84, 106, 641, 650, 
 
 651, 652 
 Duffield V. Elwes, 2, 5, 7, 8, 13, 16, 
 26, 48, 779 
 
 — V. Hicks, 8 
 Dufour V. Pereira, 430, 431 
 Dugdale v. Dugdale, 503 
 Duggins, In the goods of, 321, 324 
 Dumper v. Dumper, 766 
 
 Dunn V. Dunn, 328, 329 
 Durance, In the goods of, 331 
 Durham, Lordi7. Wharton, 53 
 Durhng v. Loveland, 409 
 Durnell v. Corfield, 409 
 Dyer v. Dyer, 766, 769 
 Dyke's Estate, In re, 301 
 
 E. 
 
 Eagles v. Le Breton, 521, 686 
 Earl's Trusts, In re, 253, 362 
 
 Early v. Benbow, 623 
 East V. Twyford, 269 
 Easton v. Pratt, 283 
 Eastwood V. Lockwood, 527 
 Easum v. Appleford, 499, 603 
 Eaton V. Smith, 621 
 
 — V. Watts, 287 
 Eckersley v. Piatt, 60, 349, 355 
 Eden v. Wilson, 510 
 
 Edge V. Salisbury, 698 
 Edmonson's Estate, In re, 479 
 Edwards, In the goods of, 330 
 
 — V. Freeman, 762, 765, 766, 768, 
 
 770, 772 ; facts in, 774, 776 
 
 — V. Jones, 2, 22 
 
 — V. Edwards, 601, 640, 542 
 Egmont V. Darell, 48 
 
 Eleock V. Mapp, 497 
 
 EUice, In the goods of, 259, 339 
 
 Elliott V. Bishop, 89, 100 
 
 — V. Collier, 704 
 
 — V. Merriman, 688 
 Ellis V. Maxwell, 78 
 
 — V. Regina, 471 
 EUison V. Ellison, 6, 41, 686 
 Elms V. Elms, 340 
 
 Elmsley v. Young, 303, 686, 697, 699 
 Elwes V. Mawe, 84, 96, 97, 106, 107, 
 
 109, 641, 644, 656 
 Emherley v. Trevanion, 672 
 Empson v. Soden, 102 
 Eno V. Tatham, 217 
 Enohin v. WyUe, 244, 246, 248, 249 
 Enyon, In the goods of, 313, 314, 321 
 Ernest v. Eustace, 711 
 Escot, In the goods of, 714 
 Essex V. Atkins, 20 
 Este V. Este, 560 
 Evan's Claim, Kidd v. Boone, 225 
 
 — In re, 619 
 
 — V. Roberts, 122 
 
 — V. Tyler, 461, 728 
 
 — V. Wyatt, 218 
 
 Evelvni). Evelyn, 700, 705, 707, 755, 
 
 • 762 
 
 Ewart In the goods of, 740 
 
 — V. Graham, 141 
 
 Eyre v. McDoweU, 174, 208, 209 
 
 — t). Ladv Shaftesbury, 305, 308, 
 
 312" 
 
 F. 
 
 Eaietlough v. Fairtlough, 894 
 Farington v. Parker, 301 
 Farquhar, In the goods of, 367 
 Farquharson v. Cave, 14, 27, 28, 29 
 32, 619 
 
 — V. Floyer, 502, 503 
 
 Farrer v. St. Catherine's College, 62 
 
XXVI 
 
 TABLE OF CASES. 
 
 Farthing v. Allen, 541 
 Faulds V. Jackson, 318 
 Fawtry v. Fawtry, 696 . 
 Fenwick, In the goods of, 301, 303 
 
 — 0. Potts, 119 
 Fernie, In the goods of, 458 
 Ferraris v. Hertford, 254, 256, 259 
 Fettiplace v. Gorges, 370, 377 
 Field's Mortgage, In re, 174 
 
 — u. Peokett, 699 
 Finch V. Finch, 414, 416 
 Fischer v. Popham, 321 
 
 Fishers. Dixon, 84, 85, 641, 642, 
 643, 644, 645 
 
 — V. Hephurn, 152 
 
 — 11. Webster, 641 
 
 — V. "Wigg, 687 
 Fisk V. Att.-Gen., 444 
 Fitzgerald «. Field, 158 
 Fitzherbert v. Shaw, 641 
 Fitzroy v. Howard, 136 
 Fleet V. Perrins, 25 
 Fletcher v. Asbumer, 49 
 
 — V. Fletcher, 4 
 
 Foley V. Addenbrookc, 101, 103 
 Forbes v. Forbes, 233 
 
 — V. Gordon, 327 
 Ford V. De Pontes, 334 
 Forest, In the goods of, 329 
 Forstane v. Welsby, 5 
 Forster, In the goods of, 670 
 Foster v. Bates, 681 
 
 — ■„. Foster, 413, 462, 735 
 
 — ,;. Handley, 130 
 
 — V. Ley, 51 
 Forth V. Chapman, 553 
 Fowler v. Churchill, 214 
 
 — V. Cooke, 691 
 Fozard, In the goods of, 738 
 Frajicis v. Collier, 366 
 Franconia, Captain of, In re, 250 
 Franklin D. The Bank of England, 213 
 Fraser, In the goods of, 331, 662 
 Freeman v. Lomas, 773 
 
 — V. Pope, 6 
 Freke v. Thomas, 723 
 French v. French, 212 
 
 Fryer v. Morland, 628, 629, 632 
 
 -r- V. Eanken, 163 
 ♦Fulton V. Andi-ew, 393, 400. (See 
 
 also Addenda et Corrigenda.) 
 
 Gabb v. Prendergast, 817 
 
 Gadbuiy, In re, 373 
 
 Gainsford v. Dunn, 294 
 
 Gall V. Fenwick, 217, 218, 219 
 
 Galliers v. Moss, 171, 172, 178, 174 
 
 Gallini v. Noble, 159 
 Garbet v. Hilton, 442 
 Gardiner v. Parker, 2, 18 
 
 — V. Slater, 443 
 Gardner, In the goods of, 417 
 
 — V. Gardner, 373. 
 Garland, Expa/rte, 586 
 Garret v. Pritty, 439 
 Garrick v. Lord Camden, 698 
 Garth v. Townsend, 301 
 Gaskin v. Eogers, 211 
 Gaters i>. Madeley, 24, 25 
 Gausden, In the goods of, 507 
 Geale, In the goods of, 394 
 Geaves v. Price, 332, 342, 343 
 General Estates Co., Inre, 171 
 Gent, In the goods of, 749 
 
 George III. (King), In the goods of, 
 
 558 ' 
 Gerrard v. Boden, 207 
 
 — V. Lewis, 177 
 Gibbon v. Gibbon, 227 
 Gibbs V. Lawrence, 144 
 Giblett v. Read, 594 
 Gibson v. Jeyes, 409 
 Gilbert v. Lewis, 372 
 
 Giles V. Warren, 348, 415, 416 
 
 Gillett V. Wray, 443 
 
 Gilliat V. Gilliat, 310 
 
 Gittings V. McDermott, 481 
 
 Gladstone v. Tempest, 333, 341 
 
 Glazebrook v. Fox, 676 
 
 Glenorchy, Lord v. Bosvillc, 133, 
 
 461, 549 
 Goddard v. Goddard, 694, 704 
 Goodill V. Brigham, 279 
 Gordon v. Gordon, 609, 510 
 Gosden v. Dotterell, 160, 163 
 Goslings). Townshend, 539 
 Gout V. Zimmerman, 240' 
 Gover v. Davis, 147 
 Gowling V. Thompson, 531 
 Graham, In the goods of, 332 
 
 — V. Maclean, 711 
 Grant v. Grant, 373 
 Graves v. Hicks, 202 
 
 — V. Salisbury, 54 
 
 — V. Weld, 120 
 Green v. Britten, 372, 444 
 
 — V. Skipworth, 452, 453 
 
 — V. Symonds, 148 
 Greenwich Hospital Improvement 
 
 Act, Re, 149 
 Greenwood's case, 390, 391 
 Gregson's Ti-usts, In re, 525, 527, 528 
 Greig, In the goods of, 259, 423, 734 
 Gresley v. Mousley, 178 
 Greville v. Tylee, 269 
 Grieve v. Grieve, 550 
 Griffiths v. Griffiths, 316, 326 
 
TABLE OF CASES. 
 
 XXVll 
 
 Giifliths V. Vere, 78, 134 
 Grimwood o. Cozens, 256, 258, 423, 
 
 424, 734 
 Grosvenor v. Durston, 164 
 Groves «. "Wright, 7 
 Grundy, In the goods of, 703 
 Grylls' Trusts, In re, 93, 556 
 Guiu-dhouse v. Blackburn, 393, 409. 
 Gully V. Davis, 159 
 Gurney v. Gurney, 329 
 Guy V. Sharps, 490 
 Gwiffim V. Gwillinj, 318, 320 
 
 H. 
 
 Habergham v. Vincent, 269 
 Hadley v. Baxendale, 188 
 Haines v. Welch, 122 
 Hakewell, In the goods of, 263 
 Haldane v. Eckford, 237 
 Hale V. Tokelove, 360, 364 
 Hales V. Freeman, 618 
 Hall, In the goods of, 269 
 
 — V. Bainbridge, 4 
 
 — V. Elliott, 572 
 
 — V. Hall, 396, 408 
 
 — V. Lietoh, 495 
 
 — V. McDonald,. 230 
 
 — V. "Waterhouse, 372 
 
 — V. Woolley, 531 
 Hallen v. Kunder, 89 
 
 Halliwell, In the goods of, 259, 424 
 Halton V. Foster, 686, 698 
 Hambly v. Trott, 194 
 Hambrooke v. Simmons, 7 
 Hamilton v. Hector, 305 
 Hammond v. Messenger, 177 
 Hampson, In the goods of, 717 
 Hand v. North, 518 
 Hannam v. Mockett, 140 
 Hannay v. Taynton, 722 
 Hardacre v. Nash, 65 
 Hai-ding v. Glyn, 285, 287, 301, 383 
 Hare v. Horton, 96 
 Hargreares v. "Wood, 690 
 Harmony, The case of, 234 
 Harrington i/. Harrington, 116, 117, 
 
 278, 289 
 Harris, In the goods of, 259, 331, 
 347, 348 
 
 — In re, 620 
 
 — V. Berrall, 339, 415 
 
 — t). Lloyd, 519 
 * — V. Newton. 
 Harrison, in the goods of, 318 
 
 ■ — V. Harrison, 497 
 Hart V. Middlehurst, 514 
 Hartopp V. Hartopp, 63 
 Harvey v. Aston, 440, 441 
 
 — V. Harvey, 645 
 
 Harvey v. Towell, 554 
 
 Harwood v. Goodright, 436 
 
 Hastilow V. Stobie, 318, 393 
 
 Haughton v, Harrison, 532 
 
 Havers v. Havers, 725 
 
 Hawkesley v. Barrow, 383 
 
 Hawtrey v. Butlin, 649 
 
 Hay, In the goods of, 697 
 — V. Willoughby, 715 
 
 (i.) Haynes v. Haynes, 516. (Pre- 
 sumption as to woman 
 being past child-bearing. ) 
 
 (ii.) — V. Haynes, 736. (Will 
 mutilated by rats.) 
 
 Hayslep v. Gymer, 2 
 
 Hearle v. Greenbank, 288 
 
 Heame v. Wigginton, 155 
 
 Heath v. Chilton, 594 
 
 — V. HaU, 177 
 
 — V. Lewis, 447 
 
 Heathcote, ^x parte, re Ogbm-ne, 176 
 Heathcote's Trusts, In re, 501, 540, 
 
 543 
 Hedges v. Hedges, 27 
 Hellawell v. Eastwood, 90, 91 
 HelUer v. HeUier, 730 
 Helyar v. Helyar, 338 
 Hemmings v. Munckley, 442 
 Henfrey v. Henfrey, 64, 66, 334, 341 
 Hensloe's case, 696 
 Hensman v. Fryer, 502, 503. 
 Hepworth v. Hepworth, 766 
 Herbert's case, 71 
 
 Herlakenden's case, 93, 96, 110, 649 
 Herrick v. Franklin,. 552, 554 
 Hertford, Lord, v. Lowther, Lord, 162 
 Hewitt V. Kaye, 9, 10, 12, 18 
 Hicks, In the goods of, 584 
 
 — V. Ross, 200 
 Higham v. Eidjgway, 420 
 Hill V. Atkinson, 617 
 Hill & Bride's case, 707 
 
 — V. Crook, 492, 617 
 
 — V. Curtis, 675, 578, 580 
 
 — V. Wilson, 4 
 Hillman v. Westwood, 284 
 *Hilliard v. Fiilford. 
 Hills V. Hills, 2 
 
 — V. Mills, 726 
 Hinchcliffe v. HinchcHffe, 52 
 Hinckley v. Simmons, 431 
 Hindmarsh v. Charlton, 60, 314, 324 
 Hindson v. Weatherill, 407, 410, 411 
 Hobbs V. Knight, 344, 345 
 
 Hobby V. EoweU, 675 
 Hobgen v. Neale, 633, 534 
 Hobson V. Blackburn, 430 
 
 — V. Neale, 137, 619 
 Hodgson's Trusts, In re, 518, 634 
 
 — V. Earl of Bective, 602, 504 
 
XXVlll 
 
 TABLE OF CASES. 
 
 Hodgson V. Jex, 152, 498 
 
 Hogan V. Jackson,' 69, 152, 153 
 
 Holdernesse, Lady v. Lord Car- 
 marthen, 198 
 
 Holland v. Hodgson, 90, 91, 92, 99, 
 649, 653, 655 
 
 Holliday v. Atkinson, 9 
 
 Hooley v. Hatton, 487, 488, 489, 492 
 
 Hooper, In re, 48 
 
 — V. Summersett, 579 
 Hope V. Hope, 306 
 
 — V. Potter, 510 
 
 — V. Taylor, 54 
 Hopkins v. Abbott, 161, 171 
 Hopkinson v. Lusk, 168 
 Hopwood V. Hopwood, 52, 53 
 HorreU v. "Witts, 729 
 Horsepool v. Watson, 514 
 Horsford, In the goods of, 322, 325, 
 
 337, 347 
 Hoskins, In the goods of, 325 
 
 — V. Matthews, 239 
 Hotchkiss's Trusts, In re, 531 
 Hotham v. Sutton, 154 
 Howard v. Bank of England, 373 
 
 — V. Harris, 128 
 Howarth v. Mills, 494 
 Howell V. Mclvers, 177 
 Hubbard v. Alexander, 456 
 
 — V. Lees, 300 
 Huble V. Clark, 413 
 
 Huokvale, In the goods of, 321, 325 
 Hudleston v. Gouldsbury, 160 
 Hudson !/•. Parker, 324 
 Hue (or Shee) v. French, 130, 211 
 Hughes V. Cook, 693 
 
 — V. Twine, 333 
 *Hugo, In the goods of. 
 Huguenin v. Baseley, 405, 407 
 Hulme V. Tenant, 371, 377 
 Humphery v. Richards, 374 
 Humphreys v. Humphreys, 494 
 Hunt, Ex pa/rle, re Amner, 175 
 
 — In the goods of, 257, 261, 262, 
 
 263, 264 
 
 — V. Hunt, 322 
 
 — V. Stevens, 602 
 Hunter's Trusts, In re, 524 
 
 — v. Atkins, 409 
 
 — V. Cheshire, 531 
 Hurry v. Morgan, 527 
 Hurst V. Beach, 486 
 Hutchinson v. Lambert, 706 
 Hyde v. Hyde, 350 
 
 — V. Parratt, 278 
 
 I. 
 
 Ibbott v. Bell, 334 
 
 llchester. Lord, Exparle, 311, 349,350 
 
 llott i>. Genge, 260, 317, 318, 320 
 Imperial Land Co. of Marseilles, In re 
 
 The, Ex parte Debenture Holders, 
 
 171. 
 *Ince, In the goods of. 
 Ingoldby v. Ingoldby, 258 
 Ingram ». Soutten, 501, 537, 540, 
 
 542, 643 
 
 — V. Strong, 440 
 
 — a. Wyatt, 400 
 Iredale v. Ford, 703, 706, 708 
 Irvine v. Sullivan, 287 
 
 Ive V. King, 629, 530, 632, 534 
 
 J. 
 
 Jackson v. Paulet, 460 
 
 — V. Sparks, 527 
 
 — V. Spittal, 193 
 Jacomb v. Jffarwood, 717 
 James, In the goods of, 347 
 
 — V. Salter, 202 
 
 — V. Shrimpton, 366 
 Janaway, In the goods of, 319, 320 
 Jeafferson's Trusts, In re, 73 
 Jenkins (or Jenkyns) v. Gaisford, 
 
 321 
 Jenkinson, In re, 632 
 Jobson V. Ross, In the goods of 
 
 Newton, 434 
 Johns V. Rowe, 696 
 Johnson, In the goods of, 569 
 
 — V. Gallagher, 376 
 
 — V. Smith, 5, 7 
 
 — V. Touchett, 301 
 Johnstone v. Earl of Harrowby, 491 
 JoUiife V. East, 687 
 
 Jones V. Godrich, 401, 402 
 
 — V. GoodohUd, 713 
 
 — v. Jones, 208 
 
 — V. Lock, 8 
 
 — V. Selby, 6, 32, 33, 34, 38 
 
 — V. Tanner, 44 
 
 Jordan, In the goods of, 64, 670 
 Joy V. Campbell, 565 
 Juler V. Juler, 497 
 
 K. 
 
 Kaye, In re, 309 
 Keen v. Keen, 338, 346, 732 
 Keep's Will, In re, 525 
 Keigwin v. Keigwin, 317 
 Kelly V. Powlet, 154 
 Kendall's Trust, In re, 152 
 
 — V. Kendall, 164 
 Kennaway v. Kennaway, 672, 677 
 Kennell i-. Abbot, 409 
 
TABLE OF CASES. 
 
 XXIX 
 
 Kent y. Kley, 6 
 Kerrick v. Bransby, 558, 674 
 Keylway v. Keylway, 704, 762 
 Kidd V. Boone, Evan's Claim, 225 
 KiUick, In the goods of, 325 
 Kilvert's Trusts, In re, 444 
 Kin^s Estate, In re, 173 
 
 — In the goods of, 344 
 
 — ■V. BeUord, 289 
 
 — V. Jones, 190, 192 
 
 — ■a. Melling, 550 
 Kingdon v. Nottle, 190, 192 
 Kipping V. Ash, 677 
 
 Kirk V. Eddowes, 53 
 
 Knight V. Boughton, 285, 287 
 
 — o. Cook, 413, 735 
 
 — u. EUis, 554 
 
 — 0. Gould, 519, 520 
 
 — i;. Knight, 167, 285 
 
 — V. Robinson, l73 
 Knights V. Quarles, 187, 189 
 Kuntsford v. Gardiner, 136 
 
 L. 
 
 Lake v. Craddock, 687 
 Lakin v. Lakin, 742 
 Lambe v. Eames, 286 
 Lancaster, In the goods of, 263 
 
 — V. Eve, 92 
 Lancashire v. Lancashire, 289 
 Land v. Land, 587, 588 
 LaneuviUe v. Anderson, 249 
 Langdale v. Whitfield, 162 
 Langford, In the goods of, 569 
 Lan^«y v. Thomas, 9 
 Langston v. Pole, 511 
 Lanphieri). Buck, 491 
 Lamer v. Lamer, 160, 499, 501 
 Lashbrooke v. Cock, 517 
 Latimer's, Dame, case, 158 
 Lawson v. Lawson, 14, 20, 22 
 
 — l: Stitch, 44 
 
 Lawton v. Lawton, 84, 85, 101, 102, 
 103, 640, 641 
 
 — V. Salmon, 84, 85, 641, 642 
 Lay, In the goods of, 273 
 Leader 1). Homewood, 104 
 Leake v. Robinson, 499 
 Ledgard v. Garland, 685 
 
 Lee, In the goods of, 324 
 
 — V. Hewlett, 209 
 
 — V. Pain, 486, 487 
 Lees V. Massay, 513 
 
 Leese, In the goods of, 271, 332, 
 
 342 
 Leeson, In the goods of, '714 
 Legge V. AsgiU, 498 
 Le Jeune v. Le Jeune, 532 
 
 Lemage v. Goodban, 269, 332, 339, 
 
 341 
 Lepine v. Beans, 494 
 Le Sueur v. Le Sueur, 240 
 Leventhorpe ». Ashbie, 133, 134 
 Lewis, In the goods of, 321 
 Lighton, In the goods of, 569 
 Lincoln v. Newcastle, 118 
 Linthwaite v. Galloway, 686 
 Lipscomb v. Lipscomb, 218 
 Listers. Smith, 454 
 
 — V. Tidd, 524 
 
 Liverpool Borough Bank v. Walker, 
 
 586 
 Llewellyn v. Lord Jeraey, 507 
 Lloyd, Sx parte, 102 
 
 — V. Branton, 442 
 
 (i.) Lloyd i>. Lloyd, 150, 498. ("All 
 my other property.") 
 
 (ii.) — X-. Lloyd, 736. (Sureties to 
 Administration bond.) 
 
 Lloyd V. Roberts, 319 
 
 — V. Spillet, 440 
 Loftus, In the goods of, 681 
 Londesborough, Lord v. Somerville, 
 
 622 
 London & Westminster Loan Co. 
 
 V. Drake, 98 , 
 
 London Chartered Bank of Australia 
 
 V. Lempriere, 377 
 Long V. BlackaJl, 699 
 
 — V. Symes, 571, 573, 574 
 Longbottom v. BeiTy, 98, 653 
 Longohamp v. Fish, 394 
 Lonsdale v. Rigg, 142 
 
 Lord V. Colvin, 239 
 — V. Wightwick, 591 
 Lorimer, In the goods of, 582, 688 
 Loring v. Thomas, 531 
 Love V. Gaze, 497 
 Lovegrove, In the goods of, 431 
 
 — v. Cooper, 230 
 Lovelace's Settlement, In re, 610 
 Lovell V. Cox, 726 
 
 Loveridge v. Cooper, 208, 209 
 Lowe, In the goods of, 270, 342 
 
 — V. Thomas, 163, 166 
 Lowndes v. Bettle, 95, 96 
 Lowry v. In the goods of, 663 
 Lucas V. Carline, 168 
 
 — V. Goldsmid, 513 
 
 — V. Lucas, 20 
 
 — V. Williams, 586 
 Lushington v. Onslow, 347 
 Lyde v. Russell, 106 
 Lynch v. Bellew, 561 
 Lyons v. Blenkin, 305 
 Lyttleton v. Cross, 466 
 
XXX 
 
 TABLE OF OASES. 
 
 M. 
 
 M'CoRMiOK V. Gi'ogan, 286 
 McDonnell v. Prendergast, 574 
 McGregor v. McGfegor, &18 
 Mackenzie v. Bradbury, 49S 
 
 — V, Mackenzie, 555 
 Mackinnon v. Peach, 632 
 Maclean's TrustSj In te, 632 
 M'Mui-do, In the goods of, 273, 367 
 M'Neilage v. Hollo way, 17, 24 
 M'Neillie v. Acton, 587, 688 
 
 M 'Vicar, In the goods of, 302 
 Maguire's Trust, In re, 444 
 Main, In the goods of, 742 
 Major V. Peck, 720 
 
 — V. WiUiams, 361 
 Majorihanks v. Hovenden, 280 
 Mangles v. Dixon, 176 
 Mann, In the goods of, 316 
 
 — V. FuUer, 487 
 
 Manning •«. Purcell, 154, 1S5, 162, 500 
 Mansergh v.- Cattipbell, 49, 201, 211 
 Mapp V. Elcock, 497 
 Marine Mansions Co. (Limited), In 
 
 re The, 171 
 Marriott v. Abell, 628 
 Marsh v. Lee, 220 
 
 — V. Marsh, 266, 357, 361 
 Marshall, In the goods of, 330, 344 
 Mai-tin, In the goods of, 433 
 
 — i). Holgate, 514 
 — ■ V. Laking, 413 
 — • V. Roe, 655 
 
 Martyr v. Bradley, 108 
 Maskelyne v. Maskelyne, 289 
 Mason's Will, In re, 168 
 Mason v. Mason, 740 
 
 — ■!).. Morley, 174 
 Master v. Miller, 181 
 Masterman B. Maberley, 341 
 Mather v. Fraser, 643 
 
 — 0. Thomas, 173 
 
 Mathias, In the goods of, 264, 361, 
 
 363 
 Matson v. Swift, 674 
 Mannd's case, 207 
 Maundrell v. Maundrell, 279 
 Mauran v. Bryan, 522 
 May, In the goods of, 357, 361, 364, 
 
 366 
 Mayd v. Field, 377 
 Mayer, In the goods of, 719, 731 
 Maynard v. Wright, 616 
 Medlycott v. Assheton, 424 
 Meinhertzhagen v. Davis, 284 
 Mellish V. Da Costa, 305 
 Mendes v. Mendes, 305 
 Mentnay v. Petty, 701 
 
 Mercer v. Morland, 706, 707 
 Meredith v. Watson, 9 
 Metcalfe v. Hutchinson, 536 
 Methuen v. Methuen, 488 
 Meux V. Jacob, 98, 640, 643 
 Micklethwaite v. Micklethwaite, 96 
 Middleton, In the goods of, 324, 349, 
 
 364 
 Middleton v. Pollock, 772, 774 
 
 — V. Forbes, 409 
 
 Midland Counties Eailway Co. (■. 
 
 Oswin, 167 
 Miller v. Austen, 15 
 
 — V. Eaton, 699 
 
 — V. Miller, 2, 20, 37 
 
 — V. Race, 23, 24 
 
 — T. Warren, 532 
 Millner's Estate, In re, 516 
 Mihie V. Gilbert, 698 
 Milnes, In the goods of, 727 
 Milroy v. Lord, 3, 8 
 
 * Minors v. Battison. 
 Minshall v. Lloyd, 101 
 Mirehouse v. Rennell, 128 
 Mitchell, In the goods of, 328, 329 
 
 — V. Reynolds, 435 
 Montague v. Montague, 269 
 
 — V. Sandwich, 160, 164 
 Moore's Settlement Trusts, In re, 518 
 
 — V. Darton, 2, 31 
 
 — V. King, 329 
 
 — V. Moore, 217 
 
 — V. Whitehouse, 414, 423 
 Moorhouse v. Lord, 239 
 Moran v. Pitt, 36 
 Mordannt v. Clarke, 465 
 
 Morgan, In the goods of, 332, 341, 
 342 
 
 — V. Gronow, 289, 291 
 
 — V. Hatchell, 310 
 
 — V. Malleson, 373 
 
 — V. Middlemiss, 487 
 Morley, In the goods of, 714 
 
 — V. Bird, 686 
 
 — V. Polhill, 192 
 Morrice v. Aylmer, 169 
 Morris, In the goods of, 724 
 
 — V. Howes, 555 
 
 — V. Livie, 50 
 Morritt v. Douglas, 318 
 Mortimer v. PauU, 729. 730 
 Morton, In the goods of, 310 
 
 — V. Thorp, 677 
 
 Moseley v. Rendell, 685, 696, 597 
 Moss V. BardsweU, 566 
 MuUinsi). Smith, 211, 486 
 Murdock v. Warner, 411 (a) 
 Mutlow V. Mutlow, 212 
 Mytton V. Mytton, 485 
 
 (a) Reported L. R. (N. S.), 4 Ch. Div. 760 ; 46 L. J. Ch. 121. 
 
TABLE OF CASES. 
 
 XXXI 
 
 Naitnock v. Hortou, 50 
 Nedby v. N edby, 20 
 Nelson v. Fage, 217 
 Nepean v. Doe d. Knight, 741 
 Nevinson v. Lennard, 159 
 Newbery, Infants, In re, 307 
 Newbold, In the goods of, 703 
 Newburgh v. Ayre, 164 
 Newill V. NewiU, 620 
 Newlands v. Paynter, 373, 376 
 Newman v, Newman, 160, 164 
 * — V. Piercey. 
 Newton v. Marsden, 446 
 
 — 0. Newton, 174, 360 
 Newton's Trusts, In re, 73 
 NichoUs, In the goods of, 740 
 
 — v. Osbom, 155 
 
 — V. Savage, 710 
 NickaUs, In tne goods of, 341 
 Noble V. Phelps, or v. 'WUIock, 362, 
 
 368, 370, 378, 380, 381 
 Nunn's Will, In re, 506 
 
 0. 
 
 Oakes v. Oakes, 169, 170 
 Occleston v. FullaloTe, 494 
 O'Dwyer v. Geare, 64, 669, 670 
 Ogle V. Knipe, 160, 161, 212 
 OSphant, In the goods of, 567, 669 
 Olivant v. Wright, 441, 540 
 Oliver v. Oliver, 484 
 O'LoughHn, In the goods of, 151 
 O'Mahoney v. Burdett, 540, 541, 543 
 Onimaney u Butcher, 499 
 Onions*. Tyrer, 850 
 Ord V. White, 176 
 Ouseley v. Anstruther, 154 
 Owen V. Owen, 687 
 Owston, In the goods of, 394 
 Oxenham v. Clapp, 576 
 
 Padgbt v. Priest, 572, 577 
 
 Page V. Page, 687 
 
 Paget V. Huish, 202 
 
 Paglar v. Tongue, 301, 383, 560 
 
 Pahuer v. Naylor, 167 
 
 — ». Palmer, 582 
 
 Panama, New Zealand, &o., Royal 
 
 Mail Co., In re, 171 
 Pare's Trusts, In re, 479 
 Parfitt V. Lawless, 404, 408 
 Parker, In the goods of, 483 
 
 — ». Bloxam, 593 
 
 Parker v. Marchant, 159 
 
 — V. Nickson, 507 
 
 — V. Tootal, 519 
 Parkes v. White, 374 
 Parkinson v. Townsend, 560 
 PameU, In the goods of, 724 
 Parsons v. Gulliford, 631 
 
 — V. Hind, 655 
 
 — V. Parsons, 199, 200 
 Paske V. Haselfoot, 293 
 
 — V. OUatt, 400 
 Pasley v. Freeman, 399 
 Passmore v. Huggins, 512 
 
 — V. Passmore, 312 
 Paton V. Sheppard, 87 
 Patten v. Poultonj 338, 339' 
 Patterson v. Huddart, 150 
 
 — V. Hunter, 717 
 Paul! V. Simpson, 582 
 
 Payne & Meredith v. Trappes, 365 
 
 — V. Webb, 751 
 Peacock v. Monk, 370, 383 
 Pearce v. Carrington, 517 
 
 — V. Morris, 216 
 Peam, In the goods of, 316 
 Pearson v. Pearson, 318, 320 
 Pechell V. lOlderley & Others, 248 
 Peel V. Catlow, 5Sl 
 Pennington v. Buckley, 519 
 Penton v. Robart, 101 
 Peppercorne v. Gardner, 680, 743 
 *Peppitt's Estate, In re 
 
 Percy v. Percy; 50 
 
 Perkins D. Fladgate, 610 
 
 Perry, In the goods o^ 370 
 
 Petchell, In the goods of, 341 
 
 Petre, Lord ». Heneage, 114 
 
 Rett's case, 704, 756 
 
 Pett V. Rett, or R. v. Raines, 701 
 
 Petty V. Wilson, 160 
 
 Phelps, In the goods of, 258 
 
 Phene's Trusts, In re, 741. 
 
 Phillips V. PhiUips, 209 
 
 Phipps V. Pitcher, 327 
 
 Phipson V. Turner, 304 
 
 Pickard v. Attomey-Greneral, 628 
 
 Pierce v. Jones, 447 
 
 Pigg V. Clarke, 512 
 
 Piggot's case, 723 
 
 Pine, In the goods of, 697 
 
 Pinney v. Pinney, 463 
 
 Pipon V. WaUis, 715 
 
 Pitt V. Pitt, 240 
 
 — V. Shew, 150 
 Plenty v. West, 332 
 Plnnket ■». Penson, 131 
 
 Podmore v. Whatton, 337, 414, 421, 
 
 422 
 Poole's case, 102, 110 
 
 — V. Heron, 49 
 
xxxu 
 
 TABLE OF CASES. 
 
 Poor V. Mial, 434, 446 
 
 Porter, In the goods of, 432, 434 
 
 — V. Shepherd, 449 
 
 Potter's Trusts, In re, 531, 633, 534, 
 636 
 
 — V. Metropolitan District Rail- 
 
 way Co., 187, 189 
 Potts V. Potts, 116 
 
 — V. Smith, 60 
 Poulett V. Hood, 163 
 
 PoweU's Trust, In re, 162, 289, 301, 
 304 
 
 — v. Hellicar, 28, 29, 30 
 
 — V. Morgan, 440 
 
 — V. Powell, 361, 352 
 
 — V. Stratford, 561 
 
 Power V. Hayne, 203, 204, 205, 211 
 Powis, In the goods of, 749 
 Powys V. Mansfield, 51 
 Pratt V. Barker, 409 
 
 — V. Jackson, 155'' 
 Prescott, Iko parte, 232 
 Price V. Boustead, 516 
 
 — ■». Parker, 370, 379 
 Prichard v. Prichard, 166, 166 
 Pride v. Bubh, 370, 371, 377, 378 
 
 — V. Fooks, 514, 527. 
 Proud V. Turner, 777 
 Puddephatt, In the goods of, 325 
 Pugh V. Arton, 104 
 Punohard, In the goods of, 664 
 Pusey V. Pnsey, 114 
 
 Pye, Expwrte, 51, 52, 53 
 Pym V. Lockyer, 63 
 
 Quick v. Quick, 427 
 
 Quincy, Ex parte, 84, 106, 644 
 
 E. 
 
 Rabbeth v. Sc[uire, 546 
 Race, In re, Z05 
 Radburn v. Jervis, 195 
 EadnaU, In the goods of, 711 
 Raffenel, In the goods of, 249 
 Raine, In the goods of, 431 
 Randall v. Rigby, 203 
 Rankin v. "Weguelin, 9, 13 
 RawUngs v. Jennings, 145, 151 
 Eawson v. Samuel, 773 
 Raymond v. Fitch, 189, 190, 192 
 Read v. Great Eastern Railway Co., 
 
 186 
 EeddeU v. Dobree, 25 
 Rees, In the goods of, 315 
 Reeve v. Attorney-General, 444 
 
 *Eeeve's Trasts, In re. 
 E. V. Bettesworth, 684 
 
 — V. Clarke, lie Alicia Race, 305 
 
 — V. Cory, 141 
 
 — V. Gallears, 138 
 
 — V. Inhabitants of Whitnash, 107, 
 
 167, 593 
 
 — V. Neville, 167 
 
 — V. Raines, or Pett v. Pett, 701 
 
 — V. Robinson, 138 
 
 — V. Shickle, 141 
 
 — V. Spearing, 138 
 
 Raid, In the goods of, 256, 264, 267 
 
 — V. Reid, 289 
 
 Rennell v. Bishop of Lincoln, 124, 
 
 126, 128 
 Eenvoise v. Cooper, 173 
 Reynish v. Martin, 436, 443 
 Reynolds v. Wright, 137 
 Rich V. Coekell, 373 
 Richards, T., In the goods of, 702 
 
 — v. Deibridge, 3 
 
 — V. Queen's Proctor, 332, 365 
 
 — V. Richards, 24 
 Eioketts v. Weaver, 189, 190, 191 
 Eidge's Trust, In re, 612, 547 
 Eigg V. Lonsdale, 142 
 
 Ripley, In the goods of, 420, 428, 
 
 732 
 Eippin, In the goods of, 345 
 Eippon, In the goods of, 246 
 Roberts v. Brett, 449 
 
 — V. Kuffin, 227 
 
 — V. PhiUips, 313, 314, 316, 324 
 
 — V. Roberts, 432 
 
 — V. Williams, 4 
 Robinson v. Evans, 556 
 
 — V. Fitzherbert, 478 
 
 — V. Godsalve, 666 
 
 — V. Wheelwright, 375 
 Eoch V. Callen, 486 
 Eochard v. Fulton, 207 
 Eogers v. Goodenongh, 360, 361 
 Rose V. Bartlett, 136 
 
 — V. Hart, 231 
 
 Ross's Trusts, In re, 73, 303, 748, 
 751, 752, 753, 761 
 
 — V. Ross, 515 
 Eotton, In the goods of, 332 
 Row's Estate, In re, 626, 626, 527 
 Rowland v. Morgan, 116 
 Ruddy, In the goods of, 722 
 Rudge V. Winnall, 157 
 
 Russell V. Plaice, 460 
 
 — V. Russell, 119, 176 
 Eyalls V. Eowles, 212 
 Ryder, In the goods of, 460 
 
 Eyves v. The Duke of Wellington, 
 567, 558 
 
TABLE OF CASES. 
 
 XXXIU 
 
 S. 
 
 Saint v. Pilley, 99, 104 
 
 St. Albans, Duke of, v. Beauolerk, 
 
 486, 488 
 Sale V. Moore, 287 
 Saltmarsh v. Bairett, 497 
 Sander v. HeatMeld, 466 
 Sanderson v. Bayley, 544, 545 
 Sandiman v. Breach, 167 
 Satterthwaite v. Powell, 740 
 Saunders, In the goods of, 273 
 
 — V. MUsome, 225 
 
 Savage, In the goods of, 258, 339, 
 
 424, 734 
 Savile v. Blackett, 50 
 Sayre v. Hughes, 776 
 Scales V. Maude, 8 
 Scarborough, In the goods of, 151, 
 
 686 
 Scarsdale, Lord, v. Cnrzon, 116 
 Scott V. Key, 286 
 
 — V. Scott, 349 
 
 — V. Tyler, 437, 442, 446, 447 
 Scouler v. Plowright, 402 
 Sharland v. Mildon, 576, 577, 578, 
 
 580 
 Sharman, In the goods of, 328, 498 
 Sharpe v. Crispin, 240 
 Shaw, In the goods of, 338, 734 
 
 — V. McMahon, 778 
 
 Shee (or Hue) v. French, 130, 211 
 
 — V. Hale, 205 
 Sheen v. Eickie, 88, 89, 92 
 Shelford v. Acland, 301 
 
 Shelley's case, 546, 552, 553, 554, 
 555 
 
 — V. Shelley, 116 
 Sherer v. Bishop, 269 
 Sherratt». Mountford, 506 
 Sherrington v. Yates, 25 
 Shiphard v. Lutwidge, 131 
 Shirley v. Lord Ferrers, 205 
 Shrewsbury, Earl of, v. Keightley, 
 
 280 
 Shudall V. Jekyll, 61 
 Sibley v. Perry, 50, 211, 514, 615 
 * Sibley's Trusts, In re. 
 Silk V. Prime, 226, 228, 229, 231, 
 ^ 472,473 
 Silver v. Stein, 718 
 Simpson's Settlement, In re, 299 
 Sims V. Doughty, 496 
 Sisters, The, case of, 35 
 Skinner v. Ogle, 259, 362, 363 
 Slanning v. Style, 20, 156, 374 
 Slark V. Dakyns, 304 
 Slaughter v. May, 720 
 Slingsby v. Grainger, 160, 508 
 Smethurst v. Toralin & Bankes, 459 
 
 Smith's case, 726 
 
 — Trusts, In re, 614 
 
 — B., Trusts, In re, 494 
 
 — In the goods of, 260, 378 
 
 — John, In the goods of, 433 
 
 — In re, 495 
 
 — Campbell 699 
 
 — 0. Davis, 495 
 
 — V. Hodson, 231, 232 
 
 — V. Parkes, 176 
 
 — V. Smith, 38, 149 
 
 — V. Spilsbury, 45 
 
 — V. Tebbitt, 386, 387, 390, 391 
 
 — V. Tracy, 707 
 Snellgrove v. Baily, 8 
 Snelling's case, 693, 696 
 Snow V. Teed, 513, 698 
 Soames v. Eobinsou, 229 
 Soar V. Dobnan, 345 
 Sollory V. Weaver, 202 
 Solomon v. Solomon, 218 
 Somerset, Lady C. , In the goods of, 717 
 South, In re, 135 
 
 — V. Williams, 481 
 Spencer's case, 181, 191 
 Sperling, In the goods of, 325 
 Spratley v. Wilson, 34 
 Sprigge V. Sprigge, 337, 415, 732 
 Squib V. Wynn, 696, 704 
 Squier v. Mayer, 110, 645 
 Staokpole v. Beaumont, 442 
 Stafford v. Buckley, 198 
 
 Stag V. Punter, 467 
 Stainton, In the goods of, 706 
 Stanger v. Nelson, 544 
 Staniland v. Willott, 2 
 Stanley «. Bemes, 243 
 
 — V. Leigh, 291 
 
 (i.) — V. Stanley, 507. (Falsa de- 
 monstraiio. ) 
 
 (ii.)— V. — 704, 762 (Preference 
 of ascendants to col- 
 laterals. ) 
 
 Stansfield v. Mayor, &e. , of Ports- 
 mouth, 104 
 
 Stapleton v. Haymen, 35 
 
 Steadman v. Powell, 370 
 
 Stein V. Ritherdon, 149, 159, 163 
 
 Stephenson, In the goods of, 697 
 
 Stevenson v. Abingdon, 545 
 
 (i.) Stewart, In Sie goods of, 260, 
 262,263,264. (Probate of 
 unattested paper.) 
 
 (ii.) — In the goods of, 563 (exe- 
 cutors according to the 
 tenour. ) 
 
 (iii.) — In the goods of, 712. {Ad 
 colligenda honit. ) 
 
 Stillwell V. Mellersh, 362 
 
 Stock V. M'Avoy, 766 
 
 d 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Stockdale v. Nicholson, 556 
 Stocks V. Barre, 164, 500 
 Stoddart, In the goods of, 2i6 
 
 — V. Grant, 334, 336 
 
 — V. Kelson, 644 
 Stokes V. Cheek, 211 
 
 — V. Heron, 200, 211 
 Stooke V. Stooke, 145 
 
 Stow V. Davenport, 49, 205, 617 
 Stracey, In the goods of, 431 
 Stratton v. Ford, 730 
 
 — V. Grymes, 439 
 Stretch v. Pynn, 693, 704 
 Stringer v. Gardiner, 506, 533 
 Sturgis V. Corp, 370 
 
 Sugden v. Lord St. Leonards, 338, 
 413, 417, 418, 419, 426, 426, 427, 
 429, 732, 733, 781 
 
 Suisse V. Lowther, 490 
 
 Sumner v. Bromilow, 104 
 
 Sunderland v. Newton, 109 
 
 Sutherland, In the goods of, 265 
 
 Sutton V. Sharp, 151, 158 
 
 — V. Torre, 622 
 Swabey v. Swabey, 206 
 Sweeting ». Prideaux, 211 
 Swift V. Swift, 306 
 Swinfen v. Swinfen, 147, 157 
 
 (i.) Sykes v. Sykes, 577, 678, 579. 
 (Executor de son tort. ) 
 
 (ii.) — V. Sykes, 778. (Eevocation 
 of gift to one of several 
 tenants in common. ) 
 
 T. 
 
 Taaffe v. Conmee, 628 
 
 Tagart v. Hooper, 424 
 
 (i.) Talbot V. Shrewsbury, Earl of 
 
 (Satisfaction of debt by a 
 
 legacy), 53 
 (ii.) — V. — (Specialty and 
 
 simple coniract debt), 472 
 Tapley v. Kent, 25 
 Tate V. Hilbert, 2, 5, 12, 14, 16, 22, 36 
 
 — V. Leithead, 12 
 Tatnall v. Hankey, 685 
 Tattersall v. Howell, 437 
 Taylor v. Ashton, 399 
 
 ■ — V. Martindale, 198, 200 
 
 — V. Meads, 300, 369, 371, 374, 
 378 
 
 (i.) — V. Taylor, 164. (Eesiduary 
 bequest.) 
 
 (ii.) _ V. Taylor, 767, et seq., 771, 
 772, 773, 774. (Ad- 
 vancement by portion.) 
 
 Taynton v. Hanuay, 721, 723 
 
 Tebb V. Hodge, 99 
 
 Tempest v. Tempest, 155, 329 
 
 TeiTible, In the goods of, 253, 270 
 
 Terry's Will, In re, 512 
 
 Thomas, In the goods of, 315, 420 
 
 — V. Evans, 334 
 
 — V. Hole, 698 
 
 — V. Jones, 263, 297, 298, 368, 
 
 369, 370, 379, 381, 382, 383 
 
 — V. Montgomery, 618 
 Thompson v. Beasley, 524 
 
 — 1. Harding, 571 
 
 — u. Heffernan, 2 
 
 — V. Teulon, 491 
 
 — V. Whitelock, 165 
 Thomson v. Advocate-General, 242, 
 
 611, 615 
 
 — V. Batty, 21 
 Thorild, In the goods of, 383 
 Thorn V. Eooke, 489 
 Thornber v. Wilson, 50 
 Thornbrough v. Baker, 221 
 Thome, In the goods of, 274 
 Thorold v. Thorold, 6 
 Thorpe v. Owen, 288 
 Thynne v. Glengall, 52 
 
 — Lord John, v. Stanhope, 350 
 Timewell v. Perkins, 145 
 Tinkler v. Hindmarsh, 587, 588 
 Tipping V. Tipping, 114 
 
 Todd V. Bielby, 50 
 Toilet V. Toilet, 285, 301, 383 
 Toplis V. Hurrell, 693 
 Townley v. Sherborne, 521, 566 
 
 — V. Watson, 346, 847 
 Trafford v. Trafford, 278 
 Trappes'w. Meredith, 211 
 
 * Trethewy v. Helyar. 
 
 Trevelyan v. Trevelyan, 413, 416, 
 
 733, 735 
 Tribe v. Tribe, 325 
 Trimmer v. Danby, 2, 27, 34, 41 
 Trinder v. Trinder, 170 
 Trinmell, In the goods of, 325 
 Trotter v. Trotter, 247 
 Truro, Lady, In the goods of, 253, 
 
 265, 266, 268, 362, 363 
 Tucker v. Westgarth, 706 
 Tuokey v. Henderson, 295, 491 
 Tullett V, Armstrong, 376 
 Turner v. Bryans, 293 
 
 — V. Tm-ner, 195, 196, 198, 201 
 Twyne's case, 6 
 
 Tyrone v. Waterford, 54 
 
 Udny v. Udny, 238 
 
 Underwood «.Wing,481, 740. (See also 
 
 Wing V. Augrave. ) 
 Urquhart.i). Urquhart, 699 
 
TABLE OF CASES. 
 
 XXXV 
 
 V. 
 
 Vaisby v. Reynolds, 157, 162 
 Vallance v. Vallance, 736 
 Vane, Earl, v. Eigden, 460 
 Vansittai-t v. Vansittart, 308 
 Van Straubenzee v. Mouok, 265 
 Vauglian v. Weldon, 193 
 Veal V. Veal, 2, 9, 13 
 Veign, In the goods of, 574 
 Vincent v. Godson, 226 
 Vinnioombe v. Butler, 316, 321 
 Vivian v. Jegon, 283 
 Vyse V. Foster, 586 
 
 W. 
 
 Wade v. Kazer, 361 
 Wade-Gery v. Handley, 505 
 Wainwright, In tbe goods of, 740, 741 
 Waite V. Coombes, 163, 500 
 
 — u. Littlewood, 525 
 Wake V. Varah, 625, 536 
 Wakeham, In the goods of, 567 
 
 — «. Merrick, 49 
 Walker's Estate, In re, 173 
 
 — In the goods of, 316, 320 
 
 — V. WooUaston, 720, 726, 729 
 WaUace v. Att.-Gen., 611, 614, 615, 
 
 ■616 
 Wallop's Trusts, In re, 610, 614 
 Walpole V. Cholmondely, 358, 369, 
 431 
 
 — V. Lord Orford, 431 
 Walter v. Hodge, 2, 42 
 Wankford v. Wankford, 4, 682, 689 
 Ward V. Grey, 211 
 
 — V. Turner, 2, 5, 22, 37, 39, 
 
 40, 41 
 
 — V. Tyrrell, 296 
 
 Waring, Sx parte, m re Agra & 
 Masterman's Bank, 15 
 
 — V. Waring, 388 
 
 Warner v. Murdock, 411, 412 (a) 
 Warrender v. Warrender, 240 
 Warren v. Kelson, 659 
 Warriner v. Rogers, 373 
 Warwick v. Greville, 695, 702, 706, 
 708, 717 
 
 — V. Hawkins, 492 
 Watkins, In the goods of, 258, 265 
 
 — V. Che(ek, 588, 691 
 Watson's, Miss, Settlement, In re, 
 
 374 
 Watt V. Watt, 697 
 Waugh V. Waugh, 531 
 Way's Trusts, In re, 209 
 
 Weale v. Olive, 8 
 Weall V. Rice, 62 
 Webb, In the goods of, 6, 314 
 
 — V. Byng, 359 
 
 — V. Kirby, 719 
 
 — V. Needham, 694, 710 
 
 — V. Sadler, 304 
 Webster v. Webster, 573 
 Weightman v. Wood, 474 
 Welch V. Phillips, 415 
 Welles V. Middleton, 409 
 Wells's Estate, In re, 493 
 
 — V. Wells, 605 
 Westw. Holmesdale, 118 
 
 — V. Moore, 157 
 
 — V. Wilby, 726 
 Westmeath v. Westmeath, 306 
 Weyland v. Weyland, 774 
 "WTiarram v. Whan-am, 413, 416, 418 
 Wheeler v. Bingham, 440, 442 
 Whicker v. Hume, 568 
 
 White, In the goods of, 720 
 
 — V. Baker, 624 
 
 — V. Birch, 607 
 
 — V. Chitty, 211 
 
 — V. Wilson, 391 
 Whitehead v. Bennett, 103 
 Whiteley v. King, 339, 416 
 Whyte V. Whyte, 488 
 Wigan V. Rowland, 328 
 Wightwick V. Lord, 591 
 Wigsell V. Smith, 295 
 Wilcox V. Smith, 619 
 
 Wild's case, 546, 549, 550, 551, 552 
 Wilday v. Barnett, 289 
 Wilde V. Waters, 106 
 Wilkinson, In re, 289, 290 
 
 — V. Adam, 492, 493 
 
 — V. Gordon, 728 
 
 — V. Wilkinson, 436 
 Wilks V. Williams, 494 
 Willett V. Sandford, 269 
 Williams, In the goods of, 694 
 
 — V. Arkle, 497 
 
 — V. Ashton, 347 
 
 — ■«. Heales, 582, 583 
 
 — V. Lewis, 667 
 
 — o. Nixon, 565 
 
 — V. Tyley, 350 
 
 — u. Wilkins, 703 
 Williamson v. Naylor, 51 
 Willock V. Noble, 380, 660 
 Wilmot V. Pike, 208 
 
 WUson, In the goods of, 324, 325 
 
 — V. Maddison, 211 
 
 — V. O'Leary, 487, 488, 489, 490, 
 
 622 
 
 — V. Whately, 104 
 
 {a) Reported L. K. (N. S.) 4 Ch. Div. 750 ; 46 L. J, Ch. 121. 
 
XXXVl 
 
 TABLE OF CASES. 
 
 "Wilton V. HiU, 374 
 "Wntshear v. CottreU, 90 
 WUtshire d. Rabbits, 207, 209, 210 
 Winohelsea v. Norcliff, 705 
 Wing^-Angrave, 740. (See also Under- 
 
 wood V. Wing.) 
 "Winn V. Ingilby, 150, 643, 644 
 "Winter v. "Winter, 257 
 Witby V. Mangles, 556, 698 
 "Witt V. Amis, 5, 9 
 "Wood V. Cox, 287 
 "Woodgate v. Unwin, 518 
 Woodhams v. Anglo-Australian & 
 
 Universal Family Life Assurance 
 
 Company, 15, 161 
 Woodmeston «. "Walker, 203 
 "Woods, In the goods of, 322 
 "Woodward, In tie goods of, 331, 332, 
 335 
 
 — 0. Woodward, 20 
 WooUaston v. W alker. (See Walker v. 
 
 Woollaston. ) 
 WooUey v. Clark, 59, 692 
 Woolstencroft v. Woolstenoroft, 217 
 Worsley v. Johnson, 708, 709 
 
 Worthington v. Curtis, 771 
 Wright's Trusts, In re, 167 
 Wright V. Eogers, 730 
 — V. Wright, 376 
 Wyatt, In the goods of, 363 
 Wyckoff, In the goods of, 712 
 Wylde V. Eadford, 174 
 "Wynch, Ex parte, 553, 554 
 Wynch's Trust, In re, 553 
 WyraU v. Hall, 65 
 
 Y. 
 
 Yates v. University College, I^on- 
 
 don, 438 
 Young V. Davies, 523 
 
 — V. Femie, 48 
 
 — V. Ferrie, 672 
 
 — V. Spencer, 96 
 
 Zballet i>. Veryard, 683 
 
SOME ADDITIONAL CASES 
 
 ON WILLS, AND KINDEED SUBJECTS, REPORTED FROM 
 JANUARY 1, TO JULY 1, 1877. 
 
 ADMINISTEATION OF ESTATE. 
 
 The rule as to costs, where executors have bond fde, but only partially, 
 divided a residuary estate — as where some of the legatees having attained theii' 
 ages are entitled to caU for their shares, and the executors make up their 
 accounts and pay those shares— must he, that where the executors have pro- 
 perly distributed the estate, and are ready to show the accounts to the re- 
 maining legatees, or the guardian of an infant legatee, and a suit is instituted, 
 and the accounts prove to be correct, the shares of the parties instituting the 
 suit must bear the costs of the litigation. If, on the other hand, the accounts 
 are incorrect, and where the 'executors assume the office of the court, and take 
 upon themselves to constme an obscure 'Will, the distribution in such case is 
 not a proper distribution. They occupy the same position as executors who 
 have not distributed at all, and "they who have made the error wiU have to 
 pay for it." Per Sir G. Jessel, M. E., in Billiard v. Fulford, L. R. (IT. S.), 
 4 Ch. Div. 389 ; 46 L. J. Ch. 43. 
 
 Practice. — Representation of unascertained classes for the purpose of deter- 
 mining construction of instrument. Appointment of representatives ad litem 
 of deceased person under 15 & 16 Vict. c. 66, s. 44. (Chancery Procedure 
 Amendment Act, 1852.) InrePeppUt's EstaU, L. E. (N. S.), 4 Ch. Div. 230 ; 
 46 L. J. Ch. 95. 
 
 Executors taking legacies under a WiU, which also gave them the residue. 
 WiU disputed by the next of kin, but established, except as to the residuary 
 clause. In an administration action, executors aUowed all costs of proving 
 Wm. Fulton V. Andrew, 46 L. J. Ch. 132. 
 
 Deficient estate. Distribution of additional funds. Advertisement for 
 creditors on further funds coming in. Ashley v. Ashley, L. E. (N. S.), 4 Ch: 
 Div. 757; 46, L. J. Ch. App. 322; affirming an order of V.-C. Malins, 45 
 L. J. Ch. 185. 
 
 Future contingent class. Administration action brought by collateral rela- 
 tions. Want of interest. Demurrer. Clowes v. HilUard, L. E. (N. S.), 
 4 Ch. Div. 413 ; 45 L. J. Ch. 271. 
 
 ADMINISTRATION (GRANT OF). 
 Party entitled to grant, aged and infirm. Grant to party entitled in distri- 
 bution, under 20 & 21 Vict, c. 77, is. 73. In the goods of Clarke, 46 L. J. 
 P. D. & A. Div. 16. 
 
XXXVIU ADDITIOKAL CASES. 
 
 EXECUTOR (CHANCERY DIVISION). 
 
 Gift to executors not beneficially entitled. Costs of administration action. 
 ■ Lapsed share of residuary personalty not primarily liable for such costs. 
 
 (i.) A. bequeathed "tp the executors or executrices of B., £100." B. left 
 an executor and two executrices, who died in the lifetime of A. Held 
 that there was a bequest to the legal personal representatives of B. to 
 hold on the trust affecting B.'s estate. Trethewy v. Eelyar, L. R. 
 (N. S.), 4 Ch. Div. 53 ; 46 L. J. Ch. 125. 
 
 (ii.) Where one of four residuary legatees mentioned by name in a Will dies 
 in testator's lifetime, the share thereby lapsing, is not primarily 
 liable for the costs of an administration action, but the costs must be 
 paid before the residue is divided. Ibid. The dictum in Gowan v. 
 Broughton on this point disapproved. L. R., 19 Eq. 77; 44 L. J. 
 Ch. 276. 
 
 Legacy to non-acting executors. The circumstance of payment to such 
 having been directed to be deferred, rebuts the presumption that the legacy 
 was given to him in the character of executor. In re Reeve's Trustx, L. R. 
 (N. S.), 4 Ch. Div. 841 ; 46 L. J. 412. 
 
 EXECUTOR (PROBATE DIVISION). 
 
 Intention to appoint executor. Appointment bad for uncertainty. A. ap- 
 pointed "either one of my three sisters my sole executrix," and the Court 
 rejected the motion. In the goods of Blaclcwell, 46 L. J., P. D. & A. 29. 
 
 Executor according to the tenour. "I appoint my said sister, S. B., my 
 executrix, only requesting that my nephews F. P. and J. B., will kindly act 
 for or with this dear sister. " Held that the nephews were executors according 
 to the tenour. In the goods of Brovm, 46 L. J., P. D. & A. 31. 
 
 Appointment of executor. Extrinsic evidence to explain description. 
 
 Testator appointed " Percival of Brighton, Esq., the father," as executor. 
 
 Extrinsic evidence admitted to show who was meant. In the goods of De 
 Bosaz, 46 L. J., P. D. & A. 6. 
 
 WILL (CHANCERY DIVISION). 
 
 Directions for sale of estate by trustees. Trust or power to sell. Minors 
 v. Batlison, L. R., 46 L. J. Ch. (H. L.) 2, reversing a previous decision of the 
 Lords Justices. 
 
 Gift to a class. A gift to a class misdescribed in number is a gift to all the 
 members of that class. This rule, not applicable where, from admissible 
 evidence, it is possible to say which of the class were meant. Newman v. 
 Piorcey, L. R. (N. S.), 4 Ch. Div. 41 ; 46 L. J. Ch. 36. 
 
 Falsa demonstratio. Specific gift. Parol evidence. £:x parte Close; Me 
 Bennett (Bank.) L. R. (N. S.), 5 Ch. Div. 145 ; 46 L. J. Ch. 3. 
 
 Separate use. Maintenance and support. Discretion of trustees. Austin 
 v. Austin, Austin v. Boyce, L. R. (N. S.), 4 Ch. Div. 233 ; 46 L. J. Ch. 92. 
 
 "Others surviving," how construed. Beekwith v. Beekmth, 46 L. J. Ch. 
 (App. ) 97, reversing a decision of V. -C. Hall. 
 
 ' ' Legal or next of kin ; " brother and sister ; nephew and niece. Harris v 
 Newton, 46 L. J. Ch. 268. 
 
ADDITIONAL CASES. XXXIX 
 
 Gift to " children, or theif issue." Child dead at date of Will. Substitu- 
 tion. In re Sibley's Trusts, L. R. (If. S.), 5 Ch. Div. 494 ; 46 L. J. Ch. 387. 
 
 Precatory Trust words. — Words "To do good to my relations, " but with no 
 restriction as to property, &c., held not to create such a trust. Cole v. 
 Havxs, 46 L. J. Ch. 483. 
 
 WILL (PROBATE DIVISION). 
 
 Lithographed form. Unattested interlineations and obliterations. Decla- 
 rations of testator's intentions before execution. Denck v. Bench, 46 L. J., 
 P. D. & A. 13. 
 
 Conditional Will, with clause of revocation. Condition not fulfilled. 
 Earlier Will admitted to probate. /?i the goods of Iliyo, 46 L. J., P. D. & A. 
 
 21. 
 
 Inconsistent Wills. AMiole subject-matter of earlier Will not covered by 
 a later Arill, and earlier WiU not expressly revoked. Dcinpsey v. Lawson, 
 46 L. J., P. D. & A. 23. 
 
 Mistaken reference by date in codicil. Probate granted of WiU and codicil. 
 In the goods oflnce, 46 L. J., P. D. & A. 30. 
 
ADDENDA ET COEEIGENDA. 
 
 Pa^e 2, note (e),for " Gardner v. Parkes," read "v. Parker." 
 
 14, note (u), for Farquha/rson v. Cane," read "Cave." 
 „ 35, note (w),for "17 & 18 Vict., Ky. 120, ». 55," reati "17 & 18 "Vict, c. 
 
 104, s. 55." Cap. 120 is the Merchant Shipping Repeal Act, 1854. 
 „ 48, line 11, for " 24 & 25 Vict.," read " 25 & 26 Vict." ; also with p. 48 
 
 read pp. 411, 412. 
 „ Ibid, in marg. for " 1861," read; " 1862. " 
 „ 51, line 12, for "had," read "has." 
 , , 62, line 23, for "Bex justiciariis suis se salutem, '' read ' ' Rex justiciariis 
 
 suie, &o., salutem." 
 „ 69, line 7, for " 1854," read " 1853." 
 ,, 91, note (n), for " By the Roman Civil Law, a man, &c.,'' read " By the 
 
 Roman Civil Law, if a man, &c. " 
 „ 95, note {u),for "6 Ed. 3," read "6 Ed. L" 
 ,, 99, line 17, for " former," read "latter." 
 „ 116, note W, /or " 2 K. & J.," read " 3 K. & J." 
 ,, 125, in marg., /or " Where advowson goes to the personal representative," 
 
 read ' ' Where right of presentation goes to personal representative. " 
 , , 135, note (/ ), for ' ' Back, " read' ' ' Bac. " 
 ,, 140, in marg., /or "amimum," read "amimus." 
 „ 141, note (i),for "7 H. & L.," read "7 H. of L." 
 ,, 144, in marg., /or " Right of heir not bequeathable, " read "Right of heir 
 
 bequeathable." 
 ,,152, note (a), for "Hodgson v. Gex," read "Hodgson v. Jex." 
 ,,156, note («), for " Slamning v. Style," read " Slanning v. Style." 
 „ 159, note {I), for "37 L. J. 369," read "37 L. J. Ch., 369." 
 „ 166, note (p), for " note (e)," read " note (c)." 
 „ 184, line 12, /or " 15 E. 3, &c.," read " 25 E. 3, &c." 
 „ Ibid, note (I), for " 8 & 9 Vict," read " 9 & 10 Vict." 
 „ 202, line 22, for " 51 G. 3, c. 41," read " 55 G. 3, c. 141." 
 ,, 242, note (e), for " Thompson," read " Thomson." 
 „ 251, note, and in marg.,/o)- "23 & 24 Vict. c. 121," read " 24 & 25 Vict. 
 
 c. 121." 
 „ 270, note (a), for " Bailey," read " Baily." 
 „ 342, note (m), /or " L. R. P. & D.," reos(« "L. R. 3 P. & D. 98." 
 ,, 355, in marg.,, /or the second use of the word "marriage," read " Will." 
 „ 361, note (*), for " 1 Sw. & Ir., &c.," read " 1 Sw. & Tr." 
 „ Ibid, note Q), for " Ves. Jur.," read " Ves. Jun." 
 ,, Ibid, note (o), for " Matthias," read " Mathias." 
 „ 363', note (x), for " 32 L. J. 115," read " 32 L. J., P. & M. 115." 
 ,, 364, in marg., for " Revised Will," read " Revived WiU." 
 „ 372, note (s),for "1 D. J. & S.," read " 1 De G. J. & S." 
 „ 379, note (y), for " 1 D. J. & S.," read " 1 De G. J. & S." 
 ,, 393, note [T), supply the case of Fulton v. Andrew, L. R. 7 E. & I. App. 
 
 448 ; 44 L. J., P. & M. 17. 
 „ 395, note (s), for " 2 Sw. & Ir.," read " 2 Sw. & Tr." 
 ,, 400, after line 14, supply Fulton v. Andrew, supra. 
 ,, 409, note (j/), for " Welless," read " Welles." 
 „ 428, note (?), for " ante p. 422," readl. " 425." 
 
 e 
 
xlii ADDENDA ET COREIGENDA, 
 
 Page 481, note (2), supply the case of Wing v. Engrave, 8 H. L. Cas. 183 ; 30 
 L. J. Ch. 65. 
 491, note («), for " 39 L. J. 146, 147," read " 29 L. J. Ch. 145, 147." 
 544, note (h), for Sanderson v. Bailey,'" read " v. Bayky." 
 667, line 2,/or "referee," read "reference." 
 575, note {e),for "him," read "himself." 
 601, note (/), for " 33 & 34 Vict.," read " 18 & 14 Vict." 
 701, note ('m),for "29 Car. 2, c. 30," read "29 Car. 2, c. 3." 
 
 706, note (i), for " Athmson v. Berna/rd," read "A. v. Ba/rna/rd." 
 
 707, note (,m),for "Famdell," read "Famdale." 
 
AN ELEMENTARY TREATISE 
 
 ON THE LAW RELATING TO 
 
 WILLS OF PERSONAL PROPERTY, 
 
 AND SUBJECTS APPERTAINING THEEETO. 
 
 CHAPTER I. 
 
 THE SUBJECT VIEWED GENERALLY. 
 
 In the law of England, the term Legacy usually denotes Definition of 
 a gift of personal property, or something considered by 
 the law as equivalent, or equal in nature, thereto, which 
 devolves upon its recipient solely through the medium of 
 a Will and Testament, and strictly speaking, by the assent 
 of the executor or executors named therein. 
 
 We say "strictly speaking," because any gift of per- Will without 
 sonalty by a Will nominating no executor at all is never- p^g^ iLacJ. 
 theless a legacy, which may be " paid or performed by an 
 administrator" (a), who takes the informal Will for his 
 guidance. This proceeding is technically termed adminis- 
 tration cum testa/mento annexo, that is, with the Will 
 annexed to the Letters of administration, or credentials of 
 the administrator's office. 
 
 By the statute 1 Vict. c. 26, known as the Wills Act WiU and Tes- 
 of 1838, " Will " and " Testament " are made synonymous s^^oTymou^ 
 terms ; but a distinction once existed between them, which terms. 
 wiU be referred to presently. 
 
 A legacy is said to be bequeathed, and the gift of a Bequest. 
 legacy is called a Bequest. 
 
 {a) QWms. Exors., Bk. 3, Introduction. 
 
WILLS OF PERSONAL PROPERTY. 
 
 Donatio 
 mortis causd 
 described. 
 
 Donationes 
 mortis causd 
 subject to 
 Legacy Duty. 
 
 Dov.ee mortis 
 
 A Donatio mortis causI, or, as it has been styled, an 
 improper kind of legacy, may be generally defined, or 
 rather perhaps described, as a duly witnessed (6) gift, 
 either direct or in trust (c), of something, the property in 
 which can, and does actually, pass by mere delivery {d), 
 made by a person in his last Ulness, or apprehensive of 
 approaching death {e), but to take effect only on that 
 event happening (/) at or about the time anticipated, or 
 within a reasonable time afterwards {g), and provided 
 there be no revocation of the gift by the donor's recovery 
 and his subsequent resumption thereof Qi). 
 
 K-ay gifts operating as donationes mortis causd, although 
 differing from legacies in certain respects hereafter to be 
 noticed, are equal to them for the purposes of the Legacy 
 Duty Acts (i), but such gifts are not affected by the Wills 
 Act of 1838 {3). 
 
 The recipient of a donatio mortis causd is termed a 
 
 DONEE MORTIS CAUSl. 
 
 (J) Tafo V. HilheH, 2 Ves. jun. 
 Ill ; Walter v. Hodge, 2 Swanst. 
 92, Judgment of Sir T. Plumer, 
 M.E. ; Thompson v. Befernan, 4 
 D. & War. (Ir.) 285; Cosnahan v. 
 Grice, 15 Moo. P. C. 215 ; and see 
 Hayslip v. Oymer, 1 A. & E. 162 ; 
 3 L. J. K. B. 149. 
 
 (c) Blount v. Bvjrrow, i Brown, 
 0. C. 72 ; Eills V. Hills, 8 M. & "W. 
 401; 10 L. J. Ex. 440, especially 
 Judgment of Eolfe, B. 
 
 (d) Miller v.. MilUr, 3 P. Wms. 
 356 ; Wa/rd v. Twmer, 2 Ves. 441 ; 
 1 L. C. in Eq. ; Burm v. Marh- 
 ham, 7 Taunt. 232, Judgment of 
 Gibbs, 0. J., C. P. ; Trimmer v. 
 Damtyy, 25 L. J. Oh. 424. 
 
 (e) Just. Inst. 2. 7. 1 ; 2 Black. 
 Com. 614 ; Gardner v. Parkes, 3 
 Madd. 184, Judgment of Sir J. 
 Leach ; and see the Judgment of 
 Lord Eldon in Duffield v. Elwes, 
 1 Bligh, N. S. 497, 530. As to the 
 Civil Law on donaiiones mortis 
 
 causd, read the argument of Mr. 
 Longley in this case, and the re- 
 ferences cited by him : also Wood's 
 Inst. Civ. L., bk. 2, ch. 4, sect. 2. 
 
 (/) TaU V. Hilbert, 2 Ves. jun. 
 120 ; 4 Bro. C. C. 291 ; Edwards v. 
 Jones, 1 Myl. & Cr. 226 ; 5 L. J. 
 Ch. 194 ; Staniland v. Willott, 3 
 Mac. & Gor. 664. 
 
 (g) See as to time. Veal v. Veal, 
 27 Beav. 303 ; 29 L. J. Ch. 321, 
 where three months elapsed between 
 the date of gift and death. 
 
 (h) Ward v. Turner, supra, 
 Judgmt. of Lord Hardwicke ; Bmin 
 V. Marlcham, 7 Taunt. 232, Judgmt. 
 of Gibbs, C. J., C. P. The former 
 ease has been dissented from in 
 America, although a great authority 
 here. See Brown v. Brown, 18 
 Conn. 410, 415. 
 
 (i) 36 G. 3, c. 52, s. 7 ; 8 & 9 
 Vict. c. 76, s. 4. 
 
 ( j) Moore v. Darton, 4 De G. & 
 S. 617 ; 20 L. J. Ch. 626. 
 
THE SUBJECT VIEWED GENERALLY. 
 
 The other and most ordinary kind of grant or gift of donatio inter 
 personal property known to the law of England, is the one 
 INTER VIVOS, that is, between living persons generally, 
 and so called to distinguish it from the other, which is 
 made in prospect of, and to take effect after, death. These 
 expressions, as well as the term Legacy, are borrowed from 
 the Civil Law (k). 
 
 We will first notice the two species of donations in 
 question before proceeding further with the main subject 
 of the treatise, namely, Bequests. 
 
 A gift or grant of personal property inter vivos, is the What is a gift 
 act of transferring the right and the possession thereof ; 
 whereby one person renounces, and another person imme- 
 diately acquires, all title and interest therein : which may 
 be done either by deed, mere writing or by word of mouth, 
 attested by sufficient evidence, of which the complete deli- 
 very of possession is the strongest and most essential (Z). 
 
 "A true and proper gift or grant is generally accom- Delivery. 
 panied with delivery of possession, and takes effect imme- 
 diately : as if A. gives to B. £100, or a flock of sheep, and 
 puts him in possession directly, it is then a gift execixted 
 
 (i) Juat. Inst. 2. 7. 2. "With re- sius Gothofredus in 1604. It has 
 
 gard to the term Civil Law, when- also been termed the Imperial Law, 
 
 ever it occurs throughout this book, and the Soman Civil Law, the latter 
 
 ii is used to denote that portion of being probably the most strictly 
 
 the Roman Law contained in the correct of all its designations, as 
 
 compilations made by order of the distinguishing the general siguifica- 
 
 Emperor Justinian, namely, the tion of "civil," that is, in the 
 
 Code,DigestsorPandects,Institutes, sense of appertaining to any state, 
 
 and Novels, comprehensively termed from the specific meaning commonly 
 
 The Carpus Juris Cimilis. The ex- allowed it, namely, the municipal 
 
 pression, Roman Law, is more ap- law of the Roman Empire, 
 
 propriately employed in speaking of (I) 2 Black. Com. 441, 442. 
 
 that which existed in the Roman . See the Judgments in Milroy v. 
 
 state anterior, to Justinian's tiine. Lord, 4 De G. F. & J. 264; 31 L. 
 
 for the reason that many of the J. Ch. 798, and in Richards v. 
 
 features of the earlier system have DeWridge, L. R. 18 Eq. 11 ; 43 L. 
 
 no place in the Corpus Juris Civilis. J. Ch. 459. See Just. Inst. 2. 7. 2 ; 
 
 This latter appellation, it is said. Wood's Inst. Civ. L, bk. 2, ch. 4, 
 
 was first bestowed upon the whole sect. 2. 
 of Justinian's collection by Diony- 
 
 .B 2 
 
WILLS OF PERSONAL PROPEETY. 
 
 When gift 
 operates as a 
 contract. 
 
 Gift by deed, 
 inter vivos. 
 
 Gift by deed 
 which is not 
 known to the 
 person bene- 
 fited. 
 
 Conveyances of 
 realty and 
 gifts of per- 
 sonalty on the 
 same footing 
 in certain 
 respects. 
 
 Difference 
 between gifts 
 inter vivos, 
 mortis causd, 
 and legacies. 
 
 in the donee ; and it is not in the donor's power to retract 
 it though he did it without consideration or recompense, 
 unless it be prejudicial to creditors, or the donors were 
 under any legal incapacity, as infancy, coverture, duress, 
 or the like; or if he were drawn in, circumvented, or 
 imposed upon by false pretences, ebriety or surprise " (m). 
 
 •If the gift does not take efifect by delivery of immediate 
 possession, it is then not properly a gift, but a contract (n) ; 
 and this a person cannot be compelled to perform, but 
 upon good and suflScient consideration (m). 
 
 When, however, the grant or gift is by deed, then, no 
 positive or corporeal delivery of the objects comprised 
 therein need be made (o), if the deed itself actually or 
 constructively pass from the donor to the donee or some 
 person on his behalf, or even remain in the donor's posses- 
 sion (p), provided it be retained for the benefit of the 
 donee, and the donor's property in the gift be in fact 
 divested. 
 
 When, however, a voluntary conveyance is made by 
 deed, of which the donee was in ignorance, the donor may 
 have the property reconveyed to him {q), for there is no 
 obligation on him to disclose such a deed and abide by its 
 terms. 
 
 Voluntary conveyances of realty and gifts of personalty 
 are on the same footing as regards their acceptance, and 
 the validity of the deeds which bestow them (r). 
 
 Between gifts inter vivos, those made in prospectu 
 mortis, and ordinary legacies or gifts by Will, there are 
 certain points of difference, which it is now proposed to 
 
 (m) 2 Black. Comm. iil. 
 
 («) "It requires the assent of 
 both minds to the making of a gift, . 
 as well as it does to the making of 
 a contract." Fer Mellish, L. J., 
 in Mill T. Wilson, L. R. 8 Ch. 888 ; 
 42 L. J. Ch. 817. 
 
 (o) Carr v. Burdis, 5 Tyrw. 309 ; 
 4 L. J. Ex. 60. 
 
 (p) Dos dem. Oamons v. Knight, 
 
 5 B. & C. 671 ; MohertsY. Williams, 
 11 L. J. Ch. 65 ; FUteUrY. Fletcher, 
 4 Hare, 67 ; 14 L. J. Ch. 66 ; Hall 
 V. Bainbridge, 12 Q. B. 699 ; 17 L. 
 J. Q. B. 317. 
 
 (?) Ex gr. Childers v. Childers, 1 
 De G. & J. 482 ; 26 L. J. Ch. 643. 
 
 {r) Butler and Baker's Case, 3 
 Co. Eep. 26 a; Dyer's Rep. 49 a; 
 Wank/ord v. Wankford, 1 Salk. 321. 
 
THE SUBJECT VIEWED GENEEALLY. 5 
 
 examine : and first as between gifts inter vivos and mortis 
 causd, 
 
 A gift inter vivos, when duly made and accepted, is 
 absolute and irrevocable by the donor, where there is no 
 fraud, mistake or surprise associated with the transaction ; 
 a donatio mortis causd, on the other hand, is always 
 countermandable by the donor personally, and he may 
 resume it at any time before his decease, the law implying 
 that it is given only in, contemplation of death (s). 
 
 Where a gift inter vivos is made by deed, the deed, as Difference 
 we have seen, may remain in the custody of the donor, inter vivos and 
 and the gift may nevertheless take effect ; but assuming sift moHis 
 that a donatio mortis causa can be given by deed, which each is made 
 no doubt is the case, it has never yet been decided, whether ^ ' 
 the mere transfer of the instrument, without actual de- 
 livery of the things contained in it, would confer them 
 upon the donee (f) ; but it was, however, the opinion of 
 two very celebrated judges that such simple transfer 
 might so operate (u). 
 
 In addition to this, we must also bear in mind the case 
 of Dujffield V. Elwes, cited above, in which the House of 
 Lords (1827) decided that a gift mortis causd of mortgage 
 deeds would pass the property secured to the donee ; and, 
 again, the more modern case — again referred to presently 
 — of Witt V. Amis, which establishes the doctrine that 
 for the purposes of this sort of gift, mortgage deeds, bonds, 
 and policies of insurance are all on the same footing, and 
 their respective values assignable by a donor to a donee 
 mortis causd. Accordingly it seems too much, nay, almost 
 absurd, to say that any other kind of deed passing from a 
 donor to a donee mortis causd, would be inoperative 
 
 («) Blovmt V. Bwrow, 4 Bro. C.C., sect. 4, p. 780. 
 72 ; Wa/rd v. Twner, 2 Ves. 433 ; («) See Lord Rosslyn's Judgmt. 
 
 1 L. C. Eq. 905. As to a settlement in Tate v. Hilbert, 2 Ves. jun. 120 ; 
 made in contemplation of death, that of Lord Hardwicke in Ward 
 which did not happen, see PorsUme v. Twrner, supra, also in Johnson v. 
 V. Welahy, 30 Beav. 243 ; 30 L. J. Smith,! Ves. 314; but see 1 Rop. 
 Ch. 331. Leg. 12. 
 
 (t) 1 Wms. Exors., pt. 2, bk. 2, 
 
WILLS OF PERSONAL PROPERTY. 
 
 Eetention of 
 deed of gift 
 mortis cmisd 
 by its donor. 
 
 Grift inter 
 vivos not sub- 
 ject to legacy 
 duty. 
 
 Donatio mortis 
 causd satisfied 
 by legacy : 
 secus of a gift 
 inter vivos, 
 generally, to 
 strangers. 
 
 unless accompanied by delivery of the actual property 
 secured by it ; however, at the present time, authority is 
 not in favour of this position. 
 
 Should a deed be employed in the bestowal of a gift 
 mortis causd, and the donor should retain possession of 
 the deed, then, in such a case, a result different from that 
 following the retention of a deed of gift mfer vivos would 
 ensue. The deed mortis causd, if it had any operation at 
 all, would in this instance have one of a testamentary 
 character, since deeds of gift, as well as some other instru- 
 ments, not inform testamentary, yet so in substance, may 
 take effect alone or by reference, as WUls, and be admitted 
 as such to probate (p). 
 
 A gift inter vivos is not subject to legacy duty ; where- 
 as, as before stated, a donatio Tnortis causd is, and 
 it is, moreover, liable to be taken for the satisfaction of 
 the donor's debts in case of a deficiency of assets, which is 
 not the case with a voluntary gift or settlement inter 
 vivos, unless, of course, it be made fraudulently, or so as 
 to delay or hinder creditors (w). 
 
 A donatio Tnortis causd may be satisfied by a legacy of 
 equal amount previously or subsequently bequeathed to 
 the donee, who, however, may prove non-satisfaction if he 
 can (x) ; and it is presumed that, in like manner, a legacy 
 may be adeemed by a donatio mortis causd. But in the 
 case of a gift inter vivos to a stranger, the onus probandi 
 as to satisfaction by legacy would lie upon those who con- 
 tend that the two provisions are to be considered only as 
 one ; since " this doctrine of constructive ademption of lega- 
 
 (v) TkoroldY. ThoroU, 1 Phillim. 
 1, Judgmt. of Sir J. MchoU ; In 
 the goods of DicKns, 3 Curt. 60 ; In 
 the goods of Well, 3 Sw. & Tr. 482 ; 
 33 L. J. P. & M. 182 ; Kule 12 ot 
 rrin. Keg. in Non- Contentious Bu- 
 siness ; 1 Wms. Exors. pt. 1, bk. 2, 
 ch. 2, sect. 3. 
 
 (w) See Freeman v. Pope, L. B. 
 5 Ch. 538 39 L. J. Ch. 689 ; Cross- 
 
 ley V. Elworthy, L. E. 12 Eq. 158 ; 
 40 L. J. Ch. 481 ; Kent v. Riley, L. 
 E. 14 Eq. 190 ; 41 L. J. Ch. 569. 
 As to Voluntary Settlements and 
 Trusts generally, see the notes to 
 Twyne's Case, 1 Sm. L. C, and 
 those to Ellison v. Ellison, 1 L. C. 
 Eq. 245. 
 
 (x) 1 Eop. Leg. 24 ; Jmies v. 
 Selby, Free. Chano. 300. 
 
THE SUBJECT VIEWED GENERALLY. 7 
 
 cies has never been applied to legacies to mere strangers, 
 unless under some peculiar circumstances " (y). 
 
 The equitable doctrine of election applies also to gifts Election. 
 •mortis causd; that is to say, if a person is a donee mortis 
 causd, being at the same time a legatee under the donor's 
 Will, and another person is also a legatee under the Will 
 of the same gift bestowed mortis causd, the former may be 
 called upon to elect which of the two gifts he will take{z). 
 
 By the modern doctrine of equity, a remainder may be Remainder 
 limited on any gift inter vivos of personalty, and by Will ™^y rift'^ i*'"* 
 as an executory bequest, unless it be of something which vivos. 
 will be destroyed by the use to which, from its very nature, 
 it would necessarily be put, as, for instance, one of eatables ; 
 for a gift of such things is absolute by the transfer thereof, 
 because they are ipso usu consumuntur, and the inten- 
 tion of the donor in such cases is immaterial (a). 
 
 Whether a remainder can be limited on a donatio Doubtful 
 mortis causd is doubtful (6) ; but there seems to exist no gi^ moHu 
 valid reason why this should not be so. causd. 
 
 It was stated by Sir J. Leach, V.-C, in his decision of Examination 
 
 the case of Duffield v. Elwes (c), that " where delivery will gj/j. Lech's 
 
 not execute a complete gift inter vivos, it cannot create a ij^'^smen* m 
 , . ■ ^ ■, . .„ , Duffiddv. 
 
 donatw m,ort%s causa, because it will not prevent the pro- eiwcs. 
 
 perty from vesting in the executors ; and as a Court of 
 
 Equity wiU not, inter vivos, compel a party to complete 
 
 his gift, so it will not compel the executor to complete the 
 
 gift of the testator." 
 
 With respect, however, to this extract, only one part of Equity cannot 
 
 perfect an im- 
 perfect gift.' 
 (y) Sm. Man. Eq. tit. 10, chap. 3, (a) See Johnson v. Smith, 1 Ves. 
 
 sect. 1. " The term strangers here 314. 
 
 includes aU who are not legitimate (a) Andrew v. Andrew, 1 Coll. 
 
 children of the donor, or children 686. As to things not considered 
 
 to whom he has placed himself in of a consumable nature, see Groves 
 
 loco parentis:'' Ibid. A volunteer, v. TFright, 2 K. & J. 3i7 ; also 
 
 in law, means a person to whom, or Cockayne v. Harrison, L. R. 13 Eq. 
 
 for whose benefit, a voluntary gift 432 ; 41 L. J. Ch. 509. 
 
 is made without valuable considera- (i) Sambrooke v. Simmons, 4 
 
 tion ; a person, other than a wife Russ. 25. 
 
 or child so benefited. (c) 1 Sim. & Stu. 239. 
 
WILLS OF PEESONAL PROPERTY. 
 
 Present doc- 
 trine of equity 
 concerning 
 doubtful gifts 
 mortis causd. 
 
 The gift of a 
 mortgage deed 
 will now ope- 
 rate as a valid 
 donatio rmyrtis 
 caiusd ; 
 
 it can be received as worthy of attention at the present 
 day, namely, that which declares the inability of equity to 
 perfect an imperfect voluntary gift {d) ; but even this 
 statement is rather too general in its terms, since, for 
 instance, equity may at any rate enforce a parol declara- 
 tion of trust in favour of a volunteer (e). 
 
 As to the rest of the learned judge's remark, we may 
 state that the reverse of it is at present the rule, for in 
 the very case of the assignment of mortgage deeds, a gift 
 of them inter vivos would be useless to a donee without 
 another deed of transfer, or unless the donor constituted 
 himself a trustee for the donee ; whereas a simple delivery 
 of them mortis causa would now pass the property secured 
 by them to the donee. Moreover, modem equity will not, 
 in cases of gifts mortis causd, look to whether the property 
 is completely transferred, but whether such an interest was 
 really intended to be bestowed upon the donee as will be 
 sufficient to enable the court to complete his title to the gift. 
 
 The doctrine enunciated by Sir J. Leach in Duffisld v. 
 Elwes, was upset in 1827 by the House of Lords on 
 appeal, that tribunal maintaining that the delivery of 
 the mortgage deeds to the donee, effectually created a 
 donatio mx)rtis causd to him (/). This, however, seems 
 really to have been only a revival of a principle applied 
 to cases which may fairly be termed analogous ; since we 
 find Lord Hardwicke, as far back as 1744, holding that a 
 bond for £100 given by a person when m prospectu 
 mortis, passed the equitable interest in the instrument to 
 the donee thereof (g). In a comparatively recent case also. 
 
 (d) AntroTms v. Smith, 12 Ves. 
 39, and see the Judgmt. of Turner, 
 L. J., in Milroy v. Lord, i De G. 
 F. & J. 264 ; 31 L. J. Ch. 798 ; 
 Sto. Eq. Jnr. oil. 10, § 607 ; Weal 
 V. OlUve, 17 Beav. 252. 
 
 (e) Jones x. Loch, L. R. 1 Ch. 
 25 ; 35 L. J. Ch. 117. The dictum 
 of Lord Cranworth, L. C, in Scales 
 V. Maiide, 6 De G. M. & G. 51, 
 
 that a parol declaration of trust in 
 favour of a volunteer is invalid, 
 was pronounced in the case just 
 cited, to be bad law. 
 
 (/) Duffield V. Elwes, 1 Bligh, 
 498, N.S. ; also in 1 Dow. 1, N. S., 
 where the case is reported as Duf- 
 field V. Hixilcs. See note (A) in Ap- 
 pendix. 
 
 {g) STiellgrovev. Saily, 3 At'k.213. 
 
THE SUBJECT VIEWED GENERALLY. 9 
 
 where a father, to -whom his son was indebted, handed, 
 
 while in his last illness, a bond to the latter, saying : 
 
 " Take this, but do not wrong your children, and do not also that of a 
 
 mortgage your property," this was held in accordance ' 
 
 with the above doctrine a valid donatio mortis causd for 
 
 the son's benefit Qi). 
 
 On the same principle a promissory note, I. 0. U., or a a policy of 
 policy of hfe insurance (i), may pass as a donatio jmortis missOTy^notej"' 
 causd; also money due on a banker's deposit note (i) ; banker's de- 
 so that the law may now be considered as settled on these i. o.'u. 
 points. 
 
 But the Courts have proceeded to still greater lengths Bills of ex- 
 in regard to the construction of this kind of gift, and in promissory 
 two comparatively recent cases have held that bills of notes not 
 exchange and promissory notes not indorsed to the donee, donee mortis 
 will pass as donationes nnortis causd (j). "'""'* ™*y 
 
 This being so, there seems no sound reason why a cheque allowed 
 cheque, which is in the nature of a bill of exchange, should *<> be a gift 
 
 , , , 1 1 • i p ■ c. , • mortis causd 
 
 not also be deemed a proper subject oi a giit tnoms only under 
 causd ; but, up to the present time, this description of certain oircum- 
 negotiable instrument has only been allowed to pass as 
 such under certain circumstances, to which we shall 
 presently allude. 
 
 With regard to a cheque, no doubt if it be given in Case of a 
 prospectu mortis, and cashed in the donor's lifetime by his gider^d. 
 banker, it would have the appearance of a gift inter vivos, 
 because a gift m.ortis causd takes effect only after the 
 donor's death. Again, the probability of the donee being 
 able to cash it after the donor's death would be slight, 
 
 Qi) Meredith v. Watson, 23 L. J. (j) Emikim, v. Wegmlin (Bill of 
 
 Ch. 221. See also LangUy v. Exohange), 27 Beav. 303; 29 L. J. 
 
 Thomas, 26 L. J. Ch. 609 (Gift Ch. 321; Veal v. Veal (Promissory 
 
 inter vivos). Notes), 27 Beav. 309 ; 29 L. J. Ch. 
 
 (i) Witt V. Amis, 1 Best & S. 323. Compare these decisions with 
 
 109 ; 30 L. J. Q. B. 318 ; and see the Judgmt. of Abbott, C. J., in 
 
 Amis V. WiU, 33 Beav. 619 ; also Holliday v. AtUnson, 5 B. & C. 
 
 Hewitt V. Kaye, L. E. 6 Eq. 198 ; 503, in which he states that a pro- 
 
 37 L. J. Ch. 633 ; Judgmt. of Lord missory note cannot pass as a donar 
 
 Komilly, M. B. tio mortis caiisd. 
 
10 
 
 WILLS OP PERSONAL PEOPEETY, 
 
 A cheque is 
 merely an 
 order to obtain 
 a certain sum 
 of money. 
 
 Illustrative 
 case. 
 
 because his personalty then devolving on his executor or 
 administrator, the banker, if he knew of his customer's 
 death, would pay the cheque at his peril. It would seem 
 then, at first sight, as though the donee mortis causd 
 of a cheque must in any case be placed in an awkward 
 dilemma (k) ; for if the donor die before the cheque is 
 cashed, the gift is, according to the decisions, lost ; but if 
 we distinguish between the cheque itself and the value 
 thereof, this difiiculty appears to be solved. The intention 
 of a person who, on his death-bed, gives another a cheque, 
 obviously is that the latter shall have the proceeds of it. 
 Accordingly, if the donee cash it before the donor's death, 
 the money must surely be the donatio mortis causd meant 
 to be bestowed. 
 
 It was stated by Stuart, V.-O., in his judgment in 
 Bromley v. Brwnton (l), and by Lord Romilly, M.R, in 
 Hewitt V. Kaye (I), that a cheque is mer,ely an order to ob- 
 tain a certain sum of money, no matter where it may happen 
 to be, whether in the hands of the donor's banker, execu- 
 tor, or of any other person ; which being so, an additional 
 reason seems to exist for holding a cheque, given under 
 any circumstances, to be a valid donatio mortis causd of 
 its value, and on this ground, that if cashed in the donor's 
 lifetime by his banker, then the proceeds form the gift ; and 
 if presented after his decease to the executor or adminis- 
 trator, the latter must, assuming the above description of 
 a cheque to be correct, be bound to obey the donor's order. 
 
 Take the following case : A. owes B. a certain sum of 
 money for goods sold and delivered. He gives B. a 
 cheque in payment of the sum due, but before B. can 
 cash the cheque, A. dies. The bankers of A. in con- 
 sequence thereof refuse to pay it. Upon whom then has 
 B. a claim for the liquidation of his debt? Of course 
 upon A's executor or administrator, who virtually cashes 
 A.'s cheque when he discharges the obligation, and not- 
 
 {k) As was the plaintiff in Beak 
 V. Beak, L. K.. ] 3 Eq. 734 ; 41 L. 
 
 J. Ch. 470. 
 
 {1} See p. 11, note; p. 9, n. (i). 
 
THK SUBJECT VIEWED GENERALLY. 11 
 
 withstanding the fact that it was not acted upon in the 
 drawer's lifetime. 
 
 It is true that a creditor stands in a position different Creditor's 
 from that of the recipient of a mere voluntary gift, but to^hose oTa^ 
 assuming the deceased person's assets sufficient for all voluntary 
 
 . . . donee, 
 
 purposes, the principle of payment both to those who claim 
 debts, as well as to the recipients of gifts, is the same ; 
 and surely a cheque given by a person, whether on his 
 death-bed or under any other circumstances, must be with 
 the intention of making his estate responsible for its 
 payment. 
 
 What really valid argument then, taking the view held Question 
 by the V ice-Chancellor and the late Master of the Rolls the ruling of 
 as to the nature of a cheque to be correct, can be adduced Stuart, X--0., 
 
 . and RomiUy, 
 
 for causing the forfeiture of a gift made by such an instru- m. b,., in 
 ment, even though it be not presented at the donor's bank 
 in his lifetime ? 
 
 Here is a case to which the preceding observations are Case of Brom- 
 pertinent. A person voluntarily gave a cheque to another, jg'j.^" ''^^ °"' 
 who forthwith presented it on two successive occasions at 
 the donor's bankers on whom it was drawn ; but they, 
 notwithstanding a sufficiencj'^ of funds in their hands, re- 
 fused to pay it, because they doubted the genuineness of 
 the drawer's signature. 
 
 The cheque in question was held to be a gift inter vivos, 
 and payable as such by the executors of the drawer with 
 interest, although the donor died only three days after 
 giving it (m). 
 
 With regard to this decision, it is to be observed in the Observations 
 first place that — according to the report furnished — the oited.^ 
 gift was not made exactly in contemplation of death, 
 although delivered by the donor in her last illness, and 
 accompanied by the expression, " should anything happen 
 to me," but that the donor's death chanced to take place 
 three days after the transaction. Had the cheque been 
 
 (m) Bromley t. Brunton, L. E. 6 Ec[. 275 ; 37 L. J. Cli. 902. 
 
12 
 
 WILLS OF PERSONAL PROPERTY, 
 
 A cheque 
 should be 
 acted upon in 
 drawer's life- 
 time. 
 
 Gift mortis 
 causd must be 
 made complete 
 by donor. 
 
 Retention of 
 a cheque by 
 donee mortis 
 ccmsA without 
 presenting or 
 cashing it. 
 
 Cheques in all 
 cases should be 
 presented for 
 payment at 
 
 Gift of cheque 
 drawn by 
 donor on his 
 
 given in actual contemplation of death, and cashed by the 
 donee or presented to the donor's bankers in her lifetime, 
 the proceeds must undoubtedly have been a donatio mortis 
 causd, although in the present state of the law, the reverse 
 would have been the case if the cheque had not been pre- 
 sented until after the donor's death, when the gift would 
 have been neither irder vivos nor mortis ca/wsd. 
 
 It will be perceived from a consideration of the facts in 
 Bromley v. Brunton that both the donor and donee of the 
 gift had each done aU that was possible to effectuate and 
 complete it, at any rate as a gift of some kind. There was 
 in the first place a perfect delivery of the cheque, and in- 
 asmuch as there were funds in the bank to meet it, the 
 donation was fully executed ; also that its apparent failure 
 was entirely owing to the course pursued by the bankers 
 under an erroneous belief on their part. 
 
 If, on the other hand, the donee of the cheque had re- 
 tained it until after the donor's decease, without present- 
 ing it for payment, then . its amount would, as before 
 stated, have been neither a gift inter vivos nor mortis 
 causd (n), but, as we shall see presently, must have fallen 
 into the residue of the deceased's personal estate, for the 
 reason, which at present is considered a sound one, that a 
 cheque " is worth nothing until acted upon," that is, pre- 
 sented for payment to the banker, whose authority to pay 
 is revoked by his customer's death (o). 
 
 In all cases, then, of all intended donations by cheque, 
 this instrument should at once be presented at the bank 
 on which it is drawn, and the proceeds will, should any 
 question arise, and no fraud appear, certainly be held a 
 gift inter vivos (p). 
 
 It will probably also have been noticed that the cheque 
 in the case under consideration was drawn by the donor 
 
 (n) Hewitt v. Kaye, L. R. 6 Eq. 
 198 ; 37 L. J. Ch. 633 ; Bealc v. 
 Bealc, in re Beak's Estate, L. R. 
 13 Eq. 734 ; 41 L. J. Ch. 470. 
 
 (o) Tate V. Hilhert, 2 Ves. jun. 
 111. 
 
 (^p) Tate V. Leiihead, Kay, 658 ; 
 23 L. J. Ch. 736. 
 
THE SUBJECT VIEWED GENEEALLY. 13 
 
 herself on her own bankers. Of course, if a person in owa tankevs, 
 prospectu mortis were to deliver another a cheque, bill of &°., VImcU 
 exchange or promissory note of a third person, of which ^^ ^^ holder, 
 the former was in possession merely as holder, indorsee or 
 payee, such cheque, bill or note would, if given in contem- 
 plation of death, be a good donatio mortis causd, even if 
 not cashed or presented for payment in the donor's life- 
 time. 
 
 The reason of this is that the delivery of the instrument No indorse- 
 
 ,, . i.,i • 1 , , n ment by donor 
 
 to the donee confers upon him the right to the money to donee re- 
 secured by them as did the mortgage deeds in Duffield v. 5?™'^ ^° * 
 Elwes. And further, as we have seen in the case of nego- camd of an 
 tiable instruments payable to the order of their holders, tiabirSstra-"' 
 no indorsement of these by the donor to the donee is ment. 
 necessary to effectuate the gift and perfect the title of the 
 recipient of them Tnortis causd (q). 
 
 The following is a case in which the gift of a cheque ^^ere a 
 
 17 J- _!• /i7 cheque was 
 
 was held a good aonatw Tnortis causa; but the pecu- held a good 
 liarity of its circumstances is very observable (r). A Mr. ^^^j*" '^'■'*' 
 Ellis, on his death-bed, handed to his wife a crossed cheque 
 for ^61000 drawn by him on his bankers, and accompanied 
 by observations indicative of his intention that it should 
 be an absolute gift; but subsequently remembering the 
 circumstance of its being crossed, and therefore not pay- 
 able over the counter, he requested a friend, one Mr. 
 Billiter, to give his wife a plain cheque of his own for the 
 same amount, and to take the crossed cheque in exchange. 
 This was done, and the latter was cashed in Mr. Ellis' life- 
 time, while Mr. Billiter's was not. 
 
 The Master of the Rolls, Sir J. Romilly, held, in the Grounds of 
 course of a not very lucid judgment, that the gift was a 
 good one mortis causd, proceeding on the ground that the 
 crossed cheque was in the hands of Mr. Billiter, really in 
 trust, and for the benefit of Mrs. Ellis, who, accordingly 
 
 {q) BanHn v. Weguelin, supra ; affirmed in 4 De G. M. & G. 249 ; 
 and Veal v. Veal, p. 9, n. (j). 22 L. J. Oh. 716. 
 
 (1-) Boutts V. Ellis, 17 Beav. 121 ; 
 
14 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Case affirmed 
 on appeal. 
 
 Cheque given 
 by dying hue- 
 band to his 
 ■wife, "with an 
 indorsement as 
 to the object of 
 the gift, held 
 an appoint- 
 ment of the 
 sum secured. 
 
 Where gift is 
 neither inter 
 vivos nor 
 mortis ccmsd. 
 
 Presentment of 
 cheque after 
 the death of 
 the donor 
 mortis causd. 
 
 ■was entitled to receive the amount for wliich it was 
 drawn (s). 
 
 On appeal to the Lords Justices, Sir J. L. Knight-Bruce 
 and Sir G. J. Turner, this decision was upheld ; but it is to 
 be regretted that these two profoundly learned judges 
 'gave no reasons for their judgments — which together 
 occupy only eight lines — ^the former merely observing 
 that the gift appeared to him to be as plain and good a 
 donatio Tnortis causd as he had ever seen or heard of; 
 the latter that the gift of the original cheque was never 
 revoked, and that it constituted a good donatio mortis 
 causd. 
 
 In an old case, already referred to, where a man, on his 
 death-bed, gave his wife a cheque for £100 indorsed with 
 the words, "To buy her mourning," the Court held that 
 the gift would operate as a donatio Tnortis causd in the 
 nature of an appointment, considering it moreover as 
 " an instance of the tender care of an affectionate husband 
 towards his wife," on which joint grounds the gift was 
 upheld (t). 
 
 In a very recent case, the circumstances attending the 
 gift of a cheque were deemed such as to constitute neither 
 a gift inter vivos nor one mortis causd (u). A man on 
 his death-bed gave, through a third person, a cheque for 
 £4000, together with' his banker's pass-book, to his 
 nephew, who unsuccessfully presented the cheque after 
 his uncle's death. In a suit for the administration of the 
 deceased's estate, the nephew claimed the £4000, and the 
 counsel who appeared for him, while admitting that the 
 
 (s) This is in accordance with 
 JDrury v. Smith, 1 P. Wms. 403, 
 where it was held that a third 
 person might receive a donatio 
 mortis causa for the donee. The 
 circumstance that all gifts mortis 
 causd raises an implied trust in the 
 donee for the donor, which exists 
 during the latter's lifetime, but no 
 longer, is to be remembered. 
 
 {t) Zawson v. Lawson, 1 P. Wms. 
 440. Lord Eosslyn considered that 
 the true reason for this decision 
 was the appointment. Tate v. Hil- 
 bert, 2 Ves. Jun. 121. 
 
 (u) Beak v. Beak, in re Beak's 
 Estate, L. R. 13 Eq. 734 ; 41 L, 
 J. Ch. 470 ; see also Farquharson 
 V. Cane, 2 Coll. 356 ; 15 L. J. Ch. 
 137, Judgmt. of Knight Bruce, Y.-C. 
 
THE SUBJECT VIEWED GENEEALLY. 15 
 
 gift could not operate as a gift inter vivos, contended that 
 it would yet take effect as a donatio mortis causd, sug- 
 gesting, moreover, that the delivery to the donee of the 
 banker's pass-book was analogous to that of giving to him 
 a banker's deposit note. Bacon, V.-C, however, said that 
 " the authorities wpre clear that the estate of a deceased 
 person was not liable for the amount of a cheque of which 
 he had made a gift in his lifetime, but which had not been 
 presented until after his dehih, since the death of the 
 drawer revokes his authority to the banker to pay his 
 cheques." His Honour also observed that the difference Difference 
 between a customer's pass-book and a banker's deposit tankerWcpo- 
 note was " enormous," without, however, pointing out that sit note and 
 difference. But the term " enormous " is correct, because pass-book 
 as the relation existing between a banker and his customer explained, 
 is only that of debtor and creditor (x), the entries in a Entries by a 
 pass-book, although made by the banker, as they always customer's 
 are, cannot possibly be more than prvmd facie evidence pass-book only 
 agamst him {y) ; that is to say, he may, it he can, prove evidence 
 
 that the entries were made by mistake, for, whether made f'S'^"'^* ^^^ 
 
 •' ' ' banker. 
 
 on the debtor or creditor side of the book, they are merely 
 items in an account current, afterwards to be examined 
 and adjusted (y). 
 
 A deposit note, or, as it is sometimes called, " an ac- 
 countable receipt for a deposit," on the other hand, is by 
 itself proof of the lodgment by the customer of a sum of 
 money. Like a similar note for goods, this instrument 
 may pass from hand to hand by a valid delivery thereof, is 
 not a chose in action, and requires no assignment (z) ; it, 
 in fact, partakes largely of the character of a negotiable 
 security, and in America an acknowledgment of this kind 
 has been held to be such (a). 
 
 (a) Expcurte Wa/ring, in re Agra (a) Woodhams v. The Anglo- 
 
 amd Mastermcm's Ba/nk, 36 L. J. Australicm and Universal Family 
 
 Ch. 151. lAfe Assurance Company, 3 Gitf. 
 
 (y) Commercml Bank of Scotland 238, Judgmt. of Stuart, V.-C. 
 
 V. Mind, 3 Macq. H. L. Cas. 643 ; (a) Miller v. Austen, 13 Howard's 
 
 per Lord Campbell, C. U. S. Eep. 218. 
 
16 
 
 WILLS OF PERSONAL PROPERTY, 
 
 Bemarks on 
 the former 
 doctrine of the 
 Courts con- 
 cerning gifts 
 
 Modern 
 doctrine. 
 
 Leaning of the 
 Courts at the 
 present day as 
 regards gifts 
 mortis causd. 
 
 Decisions of our Courts which recognise bills of ex- 
 change, promissory notes and cheques as suitable subjects 
 of gifts mortis causa ai-e, it should be observed, depar- 
 tures from what were once the established rules of law 
 on these matters, and it is to be hoped that all restrictions 
 now existing as to the last-named instruments operating as 
 such, under all circumstances, wiU at length be removed. 
 In former times, it was considered that a biU or note not 
 payable to bearer could not be a valid gift mortis causd, 
 for the reason that its delivery to the donee transferred 
 no property whatever to him, except that in the paper of 
 the document ; and in the case of a bill or note payable 
 to hearer, it was thought that the donation amounted to a 
 present absolute gift, and consequently could not be a 
 donatio mortis causd (h). But this seems like an attempt 
 to create a distinction without a difference, since a nego- 
 tiable instrument being one, the property in which, with 
 the possession, passes from one person to another like coin, 
 the same might as well have been said as to the transfer 
 of a bag of money, or that of a watch or other chattel, 
 which always could pass by delivery as donationes Tnortis 
 causd. 
 
 Accordingly, as we have seen, the old doctrine in these 
 cases has been departed from. Equity now looking to 
 whether the delivery of that which presumably confers a 
 title to intended gifts, is sufficiently complete to bestow 
 upon a donee the right to claim its assistance in securing 
 the property represented by the instrument transferred. 
 
 The truth is, that although the Courts have not been 
 inclined to this species of gift in any form — Lord Eldon 
 having gone so far as to express a hope that it might be 
 abolished from our legal system altogether (c) — ^yet it is 
 evident that there has been of late an inclination shown 
 
 (5) Toller's Exors. 233. See Tate 
 V. Hubert, ubi infra. A bill 
 specially indorsed, that is to a par- 
 ticular person, is of course not ne- 
 
 gotiable. 
 
 (c) See his judgment in DuffieU 
 V. Elwes, 1 Bligh, 633. 
 
■J'HE SUBJECT VIEWED GENERALLY. 17 
 
 to lay hold of any circumstance connected with gifts of 
 this kind when once made, to give them the operation of 
 donationes mortis causd, where that of a gift inter vivos 
 cannot take place. This certainly accords with that prin- 
 ciple of our testamentaiy law which has for its aim the 
 carrying out a testator's intentions in regard to those 
 whom he may have wished to benefit, and the present 
 leaning of the Courts in respect to these " improper lega- 
 cies " is only in harmony with that policy, conspicuous in 
 our days, the design of which is to generalise legal prin- 
 ciples, enlarge their spheres of action, and make them 
 operate so as to meet alike the requirements of the com- 
 munity and those of common sense. 
 
 Thus, it may now be said that all negotiable instru- au negotiable 
 ments, which by mere delivery pass the property secured mstniments 
 
 ' -^ . J jr J jjiay now pass 
 
 by them to a donee, namely, bills and notes, payable to as donatimes 
 bearer or order, and indorsed in blank, which are com- """" 
 monly treated as money for other purposes, may, like 
 money, pass as donationes mortis causd (c). Also that 
 many instruments which are simply securities for money, 
 and therefore choses in action, may now form valid gifts 
 mortis causd, so as to enable the donee of them, in his 
 own name, to recover what is secured thereby. Moreover, 
 it is apprehended that the new provisions of the Judica- 
 ture Act 1873, sect. 25, sub-sect. 6, which alter the former 
 rule of Equity so far as to require choses in action to be 
 assigned by writing, will not affect donations mortis causd, 
 these having heretofore, of late years, been privileged in 
 their transfer as against gifts inter vivos, and the Judica- 
 ture Act 1873 refers to transactions inter vivos only. 
 
 Accordingly, as we have seen, a bond debt, a policy of Eeoapitulatoiy 
 
 remark. 
 
 (c) Byles on Bills, 176. 1 Wms. are transferable so as to enable the 
 
 Exors. pt. 2, bk. 2, ch. 2, sect. 4. holder to sue in his own name. 
 
 "Negotiable instruments" are those Negotiable instruments are choses 
 
 in which the legal right to that in action, and not chattels personal, 
 
 which is secured by them, and the as stated in the case of MoNcilugc 
 
 right to sue on them in case of de- v. Holloway, 1 B. & Aid. 218. 
 fault by the person liable on them. 
 
18 
 
 WILLS OF PEUSONAL PROPERTY. 
 
 Policy of the 
 Courts. 
 
 insurance, mortgage deeds, a banker's deposit note, bills 
 and notes payable to order, even when not indorsed, may 
 so far pass to a donee mortis causa by delivery, as to 
 confer upon him either an equitable title to the property 
 secured by them, or at least a right to claim the assistance 
 of the Equity Division of the High Court of Justice in 
 maintaining his claim thereto. 
 
 The same may also be said of government securities (d) ; 
 and, indeed, of most securities for money, the policy of the 
 Court being to put these, on the same footing with nego- 
 tiable instruments, so far as regards their capability of 
 being given as donatio mortis canisd. An I U, it is 
 thought by Mr. Justice Byles, will not operate as a gift 
 mortis causa. (Byles on Bills, 17(3.) But yet this, like a 
 bond, is evidence of a debt, at least as between the parties, 
 although the former is of course evidence of a specialty 
 debt and the I U only of a simple contract debt, a dis- 
 tinction recognized in Gardener v. Parker, 3 Mad. 185. 
 Still, the same might be said of a promissory note, in fact, 
 there seems now to be no cause for excluding an I U 
 from operating as a donatio Tnortis causd, and the judg- 
 ment of Lord Eomilly in Hewitt v. Kaye, in which his 
 Lordship mentions this species of instrument as capable 
 of passing, also accords with this view. Lastly, anything in 
 which the property and the possession are usually deemed 
 inseparable for other purposes, can be bestowed moHis 
 causd, if duly delivered, made in contemplation of death, 
 and remain unrevoked by the donor. 
 
 It is necessary now to notice the last feature in our 
 
 Government W " Government securities, as 
 
 securities. distinguished from stocks or funds, 
 
 seem to be nothing else than Ex- 
 chequer Bills " ("Wms. P. P. 258) ; 
 and these latter are bills of credit 
 of a promissory character issued by 
 the Exchequer under the authority 
 of parliament, and form the greater 
 portion of the country's unfunded 
 
 debt. But as regards investments 
 by trustees, government securities 
 are commonly understood to signify 
 the Three per Gent. Consols, the 
 Reduced, or New Three per Cent. 
 Annuities, as well as Exchequer 
 Bills. See General Order of tlie 
 Court of Chancery, Feb. 1, 1861. 
 
THE SUBJECT VIEWED GENEEALLY. ]9 
 
 inquiry coucerniTig the points of difference between gifts A donatio 
 inter vivos and those mortis causd, which is this : Both ''^temZe 
 at Law and in Equity a donatio mortis causd may take ^^ ^ husband 
 
 1 1 i 1 1, J J -J- . to his wife and 
 
 place between husband and wjie. ' ^ce versd. 
 
 By the general rule of the Common Law, all gifts vn.ter All gifts inter 
 vivos made between persons standing in this relation are ^°^ between 
 void, for the reason furnished by another principle of the wife void at 
 same system, namely, that, while living, husband and wife °"^™°" ^^■ 
 are one person (e). 
 
 In the ancient Common Law the power of devising and The power of 
 bequeathing existed, but after the feudal system gained a hmu^ii^e 
 footing in England^ the former privilege was put an end to, ^^'^^^^ hy the 
 
 , . ? . , , . «. 1 Common Law, 
 
 and remained m abeyance— except where it was effected but the former 
 in an indirect manner by the operation of uses — from h'^th^f''^^? 
 the time of HenrjII. to that of Henry VIII. During the system. 
 reign of the latter sovereign, two important statutes were 
 passed, one the celebrated Statute of Uses (/), which statute of 
 turned previous uses into legal and beneficial estates, "^ ^* 
 the other enabling the holder of lands in socage tenure — 
 that is, without the military services and incidents of 
 other property — to devise them at his pleasure (g). 
 
 By the former of the above enactments the old Com- 
 mon Law rule as to a husband's inability to bestow a 
 gift of realty on his wife during his lifetime, was enabled 
 to be virtually set aside, and by the latter, he could devise 
 his lands to her as well as to any other person. As re- Statute of wills 
 gards the bequeathing power, this has always existed in Hen.VliF'' 
 England Qi). 
 
 {e) Co. Litt. 112, a. This is of marriage is called coverture, as if 
 
 evidently founded on the statement from tegere to cover, for the wife is 
 
 of Holy Scripture in Gen. ii. 24, and sub potestate viri, and the governing 
 
 other places. The words recorded maxim of the Common Law on this 
 
 were no doubt intended to empha- subject, is omnia qim sunt %ixoris, 
 
 tically indicate the close, uniou of sunt ipsius viri, Co. Litt. 112, a. 
 
 Imsband and wife rather than to (/) 27 H. 8, c. 10. 
 
 dictate any principle connected with (g') 32 H. 8, o. 1, which was fol- 
 
 what may be termed their municipal lowed by 34 & 35 H. 8, c. 5. 
 
 relations to each other. In the {h) 2 Black. Comm. 491. 
 language of the law, the continuance 
 
 c 2 
 
20 
 
 WILLS OF PEESONAL PROPERTY. 
 
 Doctrine of 
 equity as to 
 gifts of any 
 kind between 
 husband and 
 wife. 
 
 VThy donations 
 ■mortis caitsd 
 are valid at 
 law. 
 
 DoTiatio mortis 
 causd from 
 husband to 
 wife, and vice 
 
 Points of 
 resemblance 
 between a 
 donatio mortis 
 causd and a 
 legacy. 
 
 But independently of any statutory powers, Equity, 
 which has so often invaded the province of the older 
 system of jurisprudence — and that, too, with benefit to the 
 community, although some doubt the advantage in this 
 instance— has, as regards gifts inter vivos made between 
 husband and wife, for a great number of years past ignored 
 its rules (i), and has held the doctrine that gifts (i) and 
 even contracts between married people are valid (k) and 
 enforceable as between debtor and creditor (Jc), if made in 
 good faith, and are not so unreasonable (l) in extent as to 
 induce a suspicion of fraud or undue influence (m). 
 
 A devise and a bequest can operate at law, because both 
 are incomplete until after the death of the person who 
 makes them, and it will be remembered that a gift mortis 
 causd is one of a testamentary character, which, of course, 
 is not the case with one inter vivos. 
 
 A donatio mortis causd, then, from a husband to his 
 wife may, for the above reason, take place both at law 
 and equity (n), and vice versd when the wife's gift to her 
 husband is the savings of her housekeeping money, and 
 so forth, or generally of something which forms a portion 
 of what is called in equity her separate estate, if there 
 be no general clause of restraint on alienation or anticipa- 
 tion in the instrument creating it ; in other words, if the 
 property be absolutely hers, and alienable by her at her 
 pleasure (o). 
 
 The next thing to be noticed is the difference between 
 a donatio mortis causd and a legacy. We might, how- 
 ever, with more propriety, perhaps, consider the resem- 
 
 (i) Slanning v. Style, 3 P. Wms. 
 338 (1734). See Lord Hardwicke's 
 judgment in Lucas v. Lucas, 1 Atk. 
 271(1738) ; Stor. Eq. Jur. §§ 1374-5, 
 and Essex t. Atkins, 14 Ves. 542. 
 
 {k) Woodward v. Woodward, 3 
 De G. J. & S. 672. 
 
 {I) Beard v. Beard, 3 Atk. 72. 
 
 (m) Sm. Man. Eq. Tit. 5, ch. 3, 
 sect. 1 ; Nediy v. Nedhy, 5 De G. & 
 
 S. 377 ; 21 L. J. Ch. 446. 
 
 (n) Laioson v. Lawson, 1 P. Wma. 
 441 ; Miller v. Miller, 3 P. Wms. 
 356 ; Bouts v. Ellis, 4 De G. M. & 
 G. 249 ; 22 L. J. Ch. 716. 
 
 (o) The doctrine of a. married 
 ■wova&u's separate estate will be re- 
 ferred to at length in a, subsequent 
 Chapter. 
 
THE SUBJECT VIEWED GENERALLY. 21 
 
 blance rather than the difference between them, since it A gift mortjs 
 may be affirmed generally that wherein a donatio mortis able during 
 caiisd differs from one imter vivos, therein exists its like- ^P'^""^'^ 'i^e- 
 
 time ; 
 
 ness to a legacy. Thus, unlike a gift inter vivos and like |g subject to 
 
 n legacy, it is revocable during the lifetime of the donor, tis debts ; 
 
 is subject to his debts, also to legacy duty ; it can be, as ™^y be given 
 
 we have seen, made at law by a husband to his wife, and and wife to 
 
 vice versd ; it can, moreover, be satisfied by a legacy to ^" ° ^^ ' 
 
 the donee, if a stranger, which is not generally the case legaoy duty ; 
 
 where the original gift to the subset[uent legatee was one may be satis- 
 
 inter vivos (p). But it is obvious also from the definition igtacy^ ^ 
 
 of a donatio mortis causa that such a gift cannot be re- cannot be 
 
 voked by any subsequent Will, for the simple reason that it revoked by 
 
 •/ •' J^ >■ subsequent 
 
 is only perfected by the donor's death, and this event cannot wJl. 
 both effectuate and nullify the gift at the same time. 
 
 The points of difference between this kind of donation points of 
 and a legacy are these : — A donatio m^ortis causd is 'iiference 
 
 = l' _ . between a 
 
 claimed against the executor, whereas a legacy is claimed donatio mortis 
 
 /I !• 1, .■ 7 /• ,• 'iT'^i, causd and a 
 
 rom him. At one time, a donatio mortts causa, it with- ie»aoy. 
 
 held was recoverable from the donor's representatives by The former Is 
 
 action of trover in a Court of law, (q) whereas a legacy, recoverable^ 
 
 under the same circumstances, was generally recoverable representatives 
 
 only by suit in equity, because an executor is in the posi- trover Tn the 
 
 tion of a trustee, and not that of a debtor, to the legatees. High Court of 
 
 If, however, the executor, or administrator {cum testa- 
 
 mento a/nnexo) had assented to a specific legacy of 
 
 chattels, then an action of trover would have lain against 
 
 him for their recovery, but where the legacy was of a 
 
 general, that is, a pecuniary character, the jurisdiction of 
 
 equity was exclusive (r). Henceforth, however, a donatio No assent of 
 
 executor re- 
 
 {p) 2 Sp. Eq. Jur. C. C. 330. tense. But this is in reference to quired. 
 
 (q) See Thomson V. Batty. Stinnge, the operation of the Judicature 
 
 777; which, however, was a case of Acts, which have abolished the dis- 
 
 an executor claiming against the tinction between actions at law and 
 
 donee. suits in equity, every proceeding 
 
 (r) Wms. Exors. Pt. 5, hk. 2, being now called an "action." See 
 
 ch. 1, 1932-3. "We speak in the sect. 2i of the Jud. Act, 1873, and 
 
 ■ text of the respective jurisdiction Order I. Rule 1, of the Jud. Act, 
 
 of Law and Equity in the past 1875. 
 
23 
 
 WILLS OF PERSONAL PKOPEETY. 
 
 The donee 
 takes it on tlie 
 authority of 
 donor alone. 
 
 A donatio 
 mortis causd 
 cannot be 
 proved in the 
 Probate 
 Division of the 
 High Court. 
 
 Donor's decease 
 perfects the 
 gift mortis 
 causd. 
 
 mortis causd and a legacy also, will be recoverable by an 
 action in the High Court of Justice, in the manner pointed 
 out by the Judicature Acts. 
 
 A donatio mortis causd does not, like a legacy, whether 
 general or specific, require the executor or administrator's 
 assent to render it complete (s), for the executor stands 
 in the relation of a declared trustee to the recipient of the 
 gift (s). The donee mortis causd .then, simply keeps his 
 donation without reference to the executor, whereas if a 
 legatee takes his legacy without the executor's assent, he 
 will be liable to an action of trespass or trover (t). 
 
 A donatio mortis catisd requires no proof in the 
 Probate Division of the High Court of Justice to give it 
 validity, for its delivery to the donee, coupled with the 
 event of the donor's death, establishes it; but in the 
 gift of a legacy, its delivery to the legatee can only take 
 place by virtue of a Will, which itself cannot operate until 
 after the testator's death, and, in respect to legacies, as we 
 have just seen, only by the assent of the executor or 
 administrator (cum testamento annexo). So that, in the 
 case of a legacy, the legatee acquires neither the possession 
 of, nor the property in, his gift until the donor's decease ; 
 whereas, in that of a valid donatio mortis causd, he ac- 
 quires,at least, the complete possession thereof in thedonor's 
 lifetime, although not the full property therein, until his 
 death ; because the gift is liable to be defeated by the re- 
 sumption of ownership by the giver, or by his recovery from 
 the illness which imperils his life. The donee mortis causd 
 can have only a special property in the gift, although its 
 delivery to him by the donor confers upon him a title to 
 it absolutely in the event of the donor's death (u). 
 
 (s) Tatev.Bilbert,2YesJiin.l2n; 
 Lawson v. Zawson, 1 P. Wms. HO. 
 
 (t) Wms. Exors. pt. 3, bk. 3, 
 ch. 4, 1374. 
 
 (u) Edwards v. Jones, 1 Myl. & 
 Cr. 226, Judgment of Lord Cottcn- 
 ham, C. The property in a chattel 
 
 must not be confounded with the 
 corporeal dominion over it. This is 
 considered as equivalent to posses- 
 sion, which if it do not continue in 
 the donee, the gift is at an end. Per 
 Lord Ilardwicke in Wardv. Turner, 
 2 Ves. 431, 1 L, C. in Eq. 90C. 
 
THE SUBJECT VIEWED GENERALLY. 23 
 
 The distinction between property and possession may PropeHpa-ai. 
 be seen in the old maxims which say that, Property draws 
 after it the right of possession, and that He who hath 
 possession hath right against all but him that hath the 
 very right. A person may have the property in a thing 
 without actually possessing it, and vice versd, but the 
 property in a thing confers the right to its possession, 
 although the converse of this proposition is not true. In 
 other words, property — or that which furnishes the unques- 
 tionable right of disposing of a thing in any manner what- 
 soever — ^includes the right of possession, whereas it is 
 obvious, that possession alone, as for instance, that by a 
 thief of stolen goods, does not necessarily include the 
 property in, or just ownership of, such goods. 
 
 The second ,of the two maxims just quoted may be Armory v. 
 illustrated by the well-known case of Armxyry v. Beta- '"^'^^"^■ 
 mirie (v), which affirmed the previously enunciated 
 principle of law that, mere possession of a chattel forms a 
 sufficient title thereto as against a person who acts 
 wrongfully in regard to it, as in the case cited, where it 
 was held that the finder of a valuable article of property 
 might maintain an action of trover against one, not the 
 owner, who had withheld it from him. 
 
 The maxim may also be exemplified by another equally Miller t. Eace. 
 celebrated case, that of Miller v. Race (v), which estab- 
 lishes the rule forming an exception to the general law of 
 England as to the acquisition of title to personal chattels, 
 that in negotiable instruments, both the property and 
 possession, like that in coin, will pass by delivery. In the 
 former case, the finder and possessor of a lost jewel was 
 held to have the very right, except as against the true 
 owner ; and in the latter, the possessor of a bank-note 
 taken by him bond fide and for value, was held entitled 
 to retain it as against its former owner from whom it was 
 stolen. The very right thereto was held to have passed 
 
 (v) 1 Sm. L. C. ; see also the in- worth, 21 L. J. Q. B. 75. 
 teresting case of Bridges v. Hawkes- 
 
21 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Gift mortis 
 causd of a 
 negotiable 
 instrument 
 indorsed or 
 payable to 
 bearer. 
 
 Extent of pro- 
 perty passed to 
 a donee mortis 
 causd by deli- 
 vering to him 
 securities for 
 money and by 
 negotiable 
 instruments. 
 
 Negotiable 
 instruments 
 are not 
 chattels per- 
 sonal, although 
 money itself is. 
 
 away even from him, " upon account of the currency " {x) 
 of the note which passes from hand to hand like money. 
 
 If then, a donor inortis causd give a person a nego- 
 tiable instrument indorsed and payable to bearer, it may 
 be stated, that in such a case, something like a property 
 therein does pass to the donee, but with a liability to 
 divestment on the recovery of the donor, or by his revoca- 
 tion of the gift. 
 
 In no case, however, of the delivery of instruments, other 
 than those to which the epithet " negotiable " may be 
 strictly applied, can anything like the property in them be 
 said to pass to a donee mortis causd ; for although, as we 
 have seen, certain documents, simply securities for money 
 or debts, have been allowed to be transferred as donationes 
 mortis causd, thereby placing the donee of them to some 
 extent in the same position as the donor, and sub modo 
 conferring upon the former a full right to wiiat is secured, 
 yet such instruments, it must be remembered, arc not 
 negotiable. The property of a donee in them, or rather 
 their value — if indeed he can be said to have any at all — 
 is only of a very inchoate character, and not at all equal in 
 ejstent to that, itself only of the same character, which he 
 would have in a chattel or negotiable instrument delivered 
 to him for the same purpose, namely, to create a gift mortis 
 causd on his behalf. 
 
 It was stated by Lord Ellenborough, C. J., in McFeilage 
 V. Holloway, that a bill of exchange, and therefore a pro- 
 missory note might, at least for certain purposes, be con- 
 sidered as a chattel personal {y). The case in which this 
 dictum occurs has, however, been several times since 
 departed from {z), and the particular observation of Lord 
 
 (a-) Judgment of Lord Mansfield, 
 C. J., in Miller v. Race. 
 
 (y) 1 B. & Aid. 221. Bills, 
 cheques, bonds, promissory and all 
 bank notes, may be regarded so far 
 as chattels that they can be taken 
 by a sheriff under the writ of fieri 
 
 facias— I & 2 Vict. c. 110, s. 12— 
 but eren if so looked upon as such 
 for this purpose, for all others they 
 are choses in action. 
 
 («) See Michards v. Richards, 2 
 B. & Ad. 447 ; 9 L. J. K. B. 319 ; 
 Gaters v. Madelcy, 6 M. & "W. 423, 
 
THE SUBJECT VIEWED GENERALLY. 25 
 
 Ellenborough was on one occasion pronounced by Parke, 
 B., to be erroneous (a). But notwithstanding this, it is to A negotiable 
 be observed that the delivery mortis causd of any negoti- a°cAos™8^ 
 able instrument, which in the ordinary course of things is motion. 
 a chose in action and not a chattel, must of necessity 
 transfer to a donee as much property therein as there 
 would be transferred by the gift of anything else which 
 might happen to be strictly a chattel. The reason of this 
 is, that a negotiable instrument — being equivalent to 
 money, itself a chattel personal — partakes, when bestowed 
 as a gift mortis causd, both of the character of a chose in 
 action and a chattel. 
 
 This property spoken of is, in every case of the kind Limited cha- 
 under consideration, limited, since in no instance what- p^rty^of ^™' 
 ever of a donatio mortis causd, whether of a chose in donee in any 
 
 1 . , . . gift mortis 
 
 action or a chattel, can a complete property, in the strict causti. 
 sense of the word, pass from a donor to a donee, but it 
 may be said without refining too much, that, in gifts of 
 chattels and negotiable instruments, a more perfect 
 property is conferred on the recipient of them than where 
 instruments, which are merely securities for money and 
 nothing more, are bestowed. But in both cases the gift is When full pro- 
 rendered complete only by the happening of the same accrues"^ 
 event, the donor's death, and in both also the gift may 
 be taken back by him on his recovery, or by his revoca- 
 tion thereof before his decease. 
 
 In all cases of valid gifts mortis causd it may shortly What a donor 
 be said that the donor must part with the possession of '^"^'^^if^ 
 and the dominion (6) over his gift, but not with the all cases. 
 property therein, inasmuch as during his lifetime it is re- 
 vocable by hira at any time from the direct donee. If 
 indeed the property and the possession were to be trans- 
 
 427 ; 9 L. J. Ex. 173 ; Sherrington ing the decision of the Q. B., Kelly, 
 
 V. Yates, 12 M. & W. 855 ; 13 L. C.B,, dissenting. 
 
 J. Ex. 249 (Ex. Ch.) ; Fleet v. (a) See his Judgment in Gafers v. 
 
 Perrins, L. R., 3 Q. B. 536 ; 37 L. Madeley, see note (z), p. 24. 
 
 J. Q. B. 233 ; also L. E. Q. B. (Kx. (S) Eeddell v. Dobree, 10 Sim. 
 
 fch.) 500 ; 38 L. J. Q. B. 257, affirm- 244'; Tapley v. Kent, I Robert, 400. 
 
26 WILLS OF PERSONAL PEOPEETY. 
 
 ferred the gift of course would be absolute and irrevocable, 
 
 like one intentionally made inter vivos. Whether it is 
 
 revocable from a mere agent appointed by the donor to 
 
 I bestovy the gift on the donee is another question which 
 
 will be noticed presently. 
 Case of a donee Suppose that A. on his death-bed, gave to B. a roll of 
 appropriating Bank of England notes, saying to him at the same time — 
 gift before "they are to be yours, but only in the event of my death " 
 
 donor's death. -^ , ^ ■.-.■.„,■ ^ i .a j 
 
 — and that B. should forthwith, unknown to A., spend 
 them, say in the payment of his own debts. Here, as the 
 gift was of bank notes, negotiable instruments, the transfer 
 of them conveyed to B. both the possession, and that 
 limited property in them we have pointed out. Yet both 
 this possession and property would be liable to defeat by 
 the donor's resumption of his notes ; therefore, negotiable 
 instruments, and all other things capable of passing as 
 gifts imortis causd, are practically speaking on pretty 
 much the same footing, so far as regards the extent of the 
 property transferred by a donor. 
 What is the In the imaginary case just put, the fact of the donor 
 
 precise relation . i ■ i i x i • -/-i i -i 
 
 in -which a ^ot bemg able to resume his giit because it was appro- 
 donee moriw priated by the donee, introduces the question as to what 
 
 causa stands f ■' . . . ' 
 
 to a donor in in any casO' — since only an inchoate kind of property passes 
 lifetime^"^ ^ *'° ^ donee mortis causd until after the donor's decease — is 
 the precise relation existing between a donor and a donee 
 mortis causd, during the former's lifetime. 
 A donatio The answer to this is, that in the case supposed, and 
 
 raiseranTm- indeed, in every other of a gift mortis causd, by the trans- 
 plied trust ference of the property by the donor to the donee, the 
 ■will re-deliver creation of a trust is at once implied (c), which trust is 
 the gift should ^^^^ i^q latter will return the gift whenever called upon 
 
 the donor not ° ^ 
 
 die. by the donor, personally, to do so. Accordingly, the 
 
 retention of the gift by the donee, after its revocation by 
 the donor, or his dealing with it in his lifetime as in the 
 case above put, would be an improper conversion, if not a 
 fraud, and as such, remediable by an action of trover, 
 (c) See Lord Eldon's Judgment in DuJficUy. Elioes, 1 Bligh, N. S.497. 
 
THE SUBJECT VIEWED GENERALLY. 27 
 
 It would not, however, be punishable crinainally as a A donee mortis 
 breach of trust, because the statute against fraudulent however, be ' 
 trustees, has reference only to trusts expressly created by F^is'ied as a 
 deed, will, or some instrument in writing (d), and not to trustee. 
 implied or constructive trusts. 
 
 It is not necessary for the donor mortis causd to No express 
 expressly declare that the gift is made conditionally ; — viz. required to bo 
 to take effect only in the event of his death ; for if the gift ^'^^ ^^ ^^. 
 
 1 . 7 .77 7 1 . » ,. donor morns 
 
 be made during his last %ilness, the law infers the condi- camA that the 
 tion that the donee is only to hold the subject in case the ferVoThir' 
 donor die of that indisposition from which he is then recovery from 
 
 ~. . , , illness, as the 
 
 suffering (e). la^ implies 
 
 "We now come to a highly important matter in con- ^^^ i' w'^' '*" 
 
 nection with donations mortis causd, namely their ^^^ ^^^^^^ 
 
 Delivery, ignorance or a disregard of which has proved of a downio 
 
 1-n j}T,' J." i- ,1 'r, mortis ca'iisd q£ 
 
 a prontic source 01 litigation respecting these guts. gj-eat import- 
 
 With regard to the Delivery of a donatio mortis ^''s- 
 causd, the general rule is that. It is necessary to the '^^'^f ^^ ™l<' ^ 
 
 . . ° . . '' on the subject. 
 
 validity of every such donation that it should, where 
 possible, be actually placed in the hands of the recipient 
 thereof (/), either by the donor himself, or by some other 
 person acting at his order or request, the tradition being 
 accompanied by words adequately expressive of the 
 donor's intention. 
 
 Where the nature of the gift admits of it, a complete Manual trans- 
 manual transference of the possession of that which forms donor to^'donoo 
 the subject of a donatio mortis causd should take place, 
 and that transference ought to be made by the donor 
 himself. If made by him to an agent, acting as such, and Donor cannot 
 not for the donee's benefit, simply for subsequent re- toMs'own^'^' 
 deliveiy to the donee, the gift will fail (g). The donee agent as such, 
 
 for re-delivery 
 to donee after 
 {d) 24 & 25 Vict. c. 96, s. 80. pp. 774, 775; Trimmer v. Daniy, his death, 
 
 (e). 1 Eop. Leg. 4; Ifedges v. 2j L. J. Ch. 424. 
 Sedges, Pre. Ch. 269 ; Drury v. {g} Farquharson v. Cave, 2 Coll. 
 
 Smith, 1 P. Wms. 404. 356 ; 15 L. J. Ch'. 137 ;. Judgment 
 
 (/) 1 Eop. Leg. 4, et seqq., and of Knight Brace, V.C. See the 
 the cases cited under " Deliveiy" in note in Collyer, p. 362, for other 
 1 Wms. Exors., bk. 2, oh. 2, s. 4, cases on the subject. 
 
28 
 
 WTLLS OF PBESOlSrAL PROPERTY. 
 
 Observations 
 on the fore- 
 going point. 
 
 Difference 
 between an 
 agent for donor 
 and an agent 
 for the donee. 
 
 FarquJiarson 
 V. Cave. 
 
 Illustrative 
 cise. 
 
 also should properly receive the gift himself in propria 
 persond (h), while, unlike the donor, it is apprehended 
 that, he cannot of himself delegate to another person his 
 portion of the transaction, namely the receipt of the gift (h), 
 although at the request of the donor, a third person, as we 
 have stated before, may receive it for the donee to his 
 use, as a trustee, in the lifetime of the donor, or perhaps 
 even for delivery after his decease (i), but this is ex- 
 tremely doubtful since Powell v. Hellicar. 
 
 The particular point of our subject under consideration 
 is attended by a slight difficulty, which requires notice. 
 The definition of a donatio mortis causd, given by Black- 
 stone and other writers, states that a donor of this species 
 of gift may give it himself, or caiise it to be given to the 
 donee. If he may so cause it to be given, a question at 
 once arises as to whether or not the person employed on 
 the occasion by the donor is an agent for him. Undoubt- 
 edly he is, but we must here draw the distinction between 
 a mere agent for the donor to hold the gift to the donors 
 use, and an agent employed simply to hand the gift to the 
 donee, or to hold it to the, donee's use. A person employed 
 in the latter sense is a good agent for carrying out a 
 donor's intention ; but if such person holds the gift in his 
 custody not for the benefit of the donee, but in such a 
 manner that the donor's dominion over it remains as 
 before the delivery, then the doctrine of Farquharson v. 
 Cave (Jc) applies and invalidates the gift. 
 
 Accordingly, if A. on his deathbed delivers his watch 
 to B., and desires him to take it to C. and present it 
 to him as a gift mortis causd, and this is done before A.'s 
 death, there would be a good delivery, and so if A. 
 
 (h) Bryson v. Brownrigg, 9 Ves. 1 ; 
 Bunn V. Markham, 7 Taunt. 224 ; 
 Powell V. Hellicar, 26 Beav. 261 ; 
 28 L. J.Ch. 355. 
 
 (i) Drury y. Smith, 1 P. Wms. 
 40i. Lord Cowper, C, decided 
 this case on the ground that pos- 
 
 session of the gift had lieen trans- 
 muted in tlie donor's lifetime j but 
 the case seems at variance with 
 Powell V. Hellicar, and others, 
 since decided. 
 
 (/c.) See note (g), p. 27. 
 
THE SUBJECT VIEWED GENERALLY. 29 
 
 directed B. to hold the watch for C.'s use. But if, as in 
 the analogous case of Farquliarson v. Cave Qc), even A. K donor re- 
 himself were to hand the watch to C, but were yet to nio"oTer™e 
 retain any dominion over it, C. would then hold the ^^ ^ ^ 
 
 •' . . . , ■.. . thereby invali- 
 
 watch as the mere agent oi A., notwithstandmg any in- dated, 
 tentions A. might entertain or manifest as to bestowing it 
 on C. Such possession by C. would be " the mere custody 
 of an agent for the principal, and this would amount to 
 nothing. . . . There must he a delivery to the donee or There most be 
 some person for the donee, and the delivery must be t^'^^^OTeeor 
 coupled with an implied trust of delivery back, if required some person 
 by the testator, in case he should recover," which im- "'^ * **"^' 
 pKed trust might perhaps not exist in the case of a 
 delivery to a m^re agent. This was the principle 
 established in Farquharson v. Cave, and which has not 
 since been judicially doubted. Distinctions of this cha- 
 racter may perhaps be thought to be somewhat far- 
 fetched and unnecessary, but at present this particular 
 one is recognised, and having been acted upon by great 
 judges, must be observed until swept away by competent 
 authority. 
 
 Again, if A. in the above imaginary case, had given the Direction by 
 watch to B. with a direction to keep it and present it to C. <l<"'°5 *" ^ 
 
 ^ ^ agent to pre- 
 
 after his, B.'s, death, there would not have been a sufficient sent gift after 
 delivery to bar the claim of A.'s personal representatives 
 to the watch. This, mutatis mutandis, was the case of 
 Powell T. Mdlicar (I). 
 
 Once more; had A. deposited the watch in a drawer Where donor 
 with a writing aflSxed to it, stating his wish that the ?epositsan 
 
 1. ■ -L !• 1-111 intended gift 
 
 watch might after his death be given to C, and had sub- in a drawer, 
 sequently desired C. to carry out such intention, there w'atte^™to 
 would likewise in this instance have been no delivery suf- i*. ^^ directs 
 ficient to make the intended gift a donatio mortis causa, to eff^t^e**" 
 The facts here are analogous to those in the case oi Bunn ^^^^ 
 V. Markham, {I). 
 
 A necessary consequence of the above general rule as 
 (i) See note {g), p. 27. {I) See note (h), p. 28. 
 
30 WILLS OF PERSONAL PROPEETY. 
 
 Mere intention to the Delivery of a gift mortis causA, is that no mere in- 
 to make a . ° 
 donatio mortis tention (m) on the part of tlie donor, however clearly 
 
 sufficient""' expressed and acknowledged, can give effect to the gift ; 
 the law requires an act of delivery, clearly and unequivo- 
 cally made to the donee or some other person for his use, 
 and no doubt in the donor's lifetime. 
 Perplexing It must be confessed that these questions concerning 
 
 subject. tl^6 employment of an agent by one who intends bestowing 
 
 gifts fnortis causd, are not a little calculated to perplex 
 the mind of a person seeking for some exclusive or inclusive 
 principle on this subject. It would seem that no such 
 has yet been precisely enunciated, or rather perhaps the 
 courts may be said to have applied the general rule in no 
 very certain manner. Each case, as indeed in most others 
 requiring to be settled by courts of justice, must apparently 
 be decided according to its own circumstances — of course 
 infinite in their variety — yet in such a manner, that all 
 decisions may be as much as possible within so much of 
 the terms of a general rule as may happen to exist on the 
 particular point. 
 Instance of As an instance of this uncertainty, either in the rule or 
 
 the°\ppHcation its application, we find that in Drury v. Smith, the gift was 
 of general rule, delivered to an agent to be re-delivered to the donee after 
 the donor's death, and was pronounced good. In Powell 
 V. Hellicar, the subject of the gift was delivered to an 
 agent to hold for the donee, and with the same intent ; 
 yet here it was held to be void. Between the two cases 
 there was only this difference ; in the former, the donation 
 was of a negotiable instrument, and the gift took the form 
 of a cancellation of debt ; in the latter, the gift was of 
 a chattel. Still, as regards this question of agency, the 
 two cases appear very similar. 
 Forgiveness of A donatio mortis causa, it appears, will not have the 
 ■^i-^camd!" effect of extinguishing a debt due from the donor to the 
 
 (m) Judgt. of SirW. Grant, M.K., ham, also Powell v. Hellicar. (All 
 in Bryson v. Brownrigg, that of at note {h), p, 28.) 
 Gibbs, C.J., C.P., mBunn v. Mark- 
 
THE SUBJECT VIEWED GENERALLY. 31 
 
 donee, unless, of course, it be stated to be made with this 
 view ; but a very interesting instance of how a donatio 
 mortis causa may, like a legacy, operate as a forgiveness 
 of a debt is seen in the case of Moore v. Barton (n), which 
 also well illustrates our foregoing remark, as to the inde- 
 terminate nature of the general rule concerning agency in 
 the conferring or receiving gifts mortis causa. 
 
 So far as regards the present discussion, Moore v. Barton Moore v. 
 was as follows: — 
 
 Miss Darton, in Oct., 1843, lent Mr. Moore £500. In 
 acknowledgment of the loan he gave her a document worded 
 thus : — 
 
 " Eeceived 22nd Oct., 1843, of Miss Darton, £500, to 
 bear interest at £4 per cent., but not to be withdrawn at 
 less than six months' notice. Wm. Mooee." 
 
 Ten days before her death. Miss Darton took this paper 
 out of a drawer, and handed it to her maid, requesting her 
 to take care of it, and to give it immediately after her death 
 to Mr. W. Moore, as a cancellation of his debt to her. 
 She also directed the maid not to let the executors of her 
 Will see the paper in question. 
 
 The master in Chancery in his report to the Court, 
 stated that there was an outstanding debt to the amount 
 of £500 due from Mr. Moore to Miss Darton's estate. To 
 this report exceptions were taken, and the question was 
 whether this £500 was a good donatio mortis causa. 
 Knight. Bruce, then V.C. (1851), in deciding this in the Decision of 
 affirmative, said— " I think upon the evidence that the ^msht Bruce, 
 document was placed in the hands of Anne Dye — the 
 maid — sufficiently in the character of an agent for Mr. 
 Moore, to make it equivalent to a delivery to Mr. Moore, 
 and I think that the intention was that which is sufficient 
 to create a gift mortis causd." His Honour also stated 
 that no decision had gone " to the length of saying that a 
 delivery merdy of what is evidence of a debt will amount 
 to the gift of a debt," but he indicated that where there 
 («) 4 De G. & Siu. 617 ; -20 L. J. Ch. 626. 
 
32 
 
 WILLS OF PERSONAL PROPERTY. 
 
 The mere 
 delivery to 
 donee of 
 evidence of his 
 debt not 
 sufficient. 
 
 Concluding 
 remarks on 
 subject of 
 agency in 
 giving dona- 
 tions Tnortis 
 causd. 
 
 Antiquity of 
 donationes 
 tnortis causd 
 in cqnneotion 
 with English 
 law. 
 
 Jones V. Selhy 
 the earliest 
 reported case 
 on this subject. 
 
 was some other contemporaneous document given besides 
 such evidence of debt, as was done in the present case, 
 then the two conjointly might, cceteris paribus, opepte as 
 a forgiveness of the debt, and form a valid gift Tnortis 
 causd (o). 
 
 It is thus seen that decisions upon this nice point of 
 agency, will turn upon the view taken by the Court of the 
 facts of each individual case, and the applicability of what 
 we have called the general rule as to them. In Farqu- 
 harson v. Gave, the intended gift partbok Ijoo much of a 
 purely testamentary character for the judge to pronounce 
 it either a gift inter vivos or mortis causd, and the sub- 
 sequent delivery of the bonds in Mr. Farquharson's life- 
 time did not change the significance of this fact. 
 
 The great question in all these cases is, Was the agent 
 employed for the donor or for the donee's benefit ? That 
 in itself is a simple query, but enough has been said to 
 show that the answer to it is a matter that may be attended 
 with no small difficulty. 
 
 Although donationes mortis causd were known in 
 England as far back as the reign of Henry III. (1216- 
 1272) (p), having come to us from the civil law, yet, we 
 believe, the earliest reported case concerning them is that 
 of Jones V. Selby in 1710 (q). This case, which was 
 decided, on appeal, by Lord Chancellor Cowper, is one 
 well calculated to illustrate the present subject, and was 
 shortly as follows : — v::h 
 
 A. made a Will in 1702, by which he gave to his house- 
 keeper, the plaintiff, £500, and about three months after- 
 wards, in the presence of servants, expressly gave her a 
 trunk, together with the key of it, and bade his servants 
 
 (o) An I TJ then, being evi- 
 dence of debt, would, according to 
 this ruling, pass as a donatio mortis ■ 
 causd, if accompanied by some 
 other document indicative of the 
 donor's intention. If so, then why 
 not, if accompanied by words in 
 
 the presence of witnesses? (See 
 p. 18.) 
 
 (p) See Bracton'siJe Leg. et Con- 
 suet. Aug., to. 60. (Completed 
 about 1270, and first published in 
 1569, dm-ing the reign of Elizabeth.) 
 
 (q) Prcc. Chanc. 300. 
 
THE SUBJECT VI>EWED GENERALLY. 33 
 
 remember the transaction. Three years after this, A. 
 made another Will, revoking all former Wills, and therein 
 bequeathing to the plaintiff £1000, but not mentioning 
 the trunk in question or its contents. He died shortly- 
 after making this Will, and on the trunk being opened, it 
 was found to contain various articles of value, together 
 with a government tally for £500 (r). Lord Cowper held; Decided on tlie 
 on these facts, that the legacy of £1000 was a satisfaction Stkfaction of 
 of the tally for iGoOO, remarking that it was strange that 8^* ^^ legacy. 
 the testator had never said anything as to the presence of 
 this security in the trunk. 
 
 It will be seen from an inspection of this case, that. Observations 
 notwithstanding the precise reason given for the decision "g^^' "' 
 therein, namely, satisfaction of the gift by a subsequent 
 legacy, yet, as pointed out by Mr. Roper in his very 
 learned work (s), the donation of the trunk as one 'mortis 
 causd, might perhaps have been defeated on other grounds 
 beyond the one stated. 
 
 In the first place, the gift was not made in apprehension Other grounds 
 or prospect of death, nor yet during the donor's last illness, fuggesl^ed"'"'"" 
 Again — and here Jones v. Selby more closely illustrates 
 the present portion of our subject — " there was no deli- 
 very of the trunk to the donee, but of the key only, so 
 that it appears the delivery was incomplete, and the 
 donation therefore imperfect" (t). The main require- 
 ments to the validity of a donatio mortis causd .were 
 therefore here wanting, and thus, the first reported case 
 on this species of gift, might probably have been decided 
 with reference to the important feature in a true donatio 
 mortis causd which we are now discussing, viz., its delivery 
 to the donee (s). 
 
 (r) A tally -was a piece of wood G. 3, c. 82. The old tallies were 
 
 cut with iudentnies or notches in ordered to be destroyed by 4 & 6 
 
 two corresponding parts, of which W. 4, c. 15. See more in Spel- 
 
 one was kept by the creditor, and man's "Glossarium Archseologi- 
 
 the other by the debtor. Accounts cum," Voc. Tallium; also Whar- 
 
 were formerly kept in this way. ton's Law Lex. 
 Tallies were used in the English (») 1 Kop. Leg. 16. 
 
 Exchequer until abolished by 23 (i) Id. Ibid. It is apprehended, 
 
WILLS OF PERSONAL PROPEETY. 
 
 Spratley v. 
 Wilson. 
 
 Intention 
 merely of donor 
 insufficient. 
 
 Exceptions to 
 the rule of 
 actual delivery 
 
 Symbolic 
 delivery. 
 
 Gifts of ordi- 
 nary chattels 
 capable of 
 passing from 
 hand to hand. 
 
 Another old case, and one of some quaintness,' -will, 
 though otherwise vakieless, serve to exemplify the doc- 
 trine of delivery as applied to a donatio tnortis causd (u). 
 A person in extremis said to another, " I have left my 
 watch at Mr. K's, Charing Cross, fetch it away, and I 
 will make you a present of it." Gibbs, C.J., held this 
 a complete donation, forgetting that there had been 
 no actual delivery of the watch ; but when the case was 
 cited before him some time afterwards, his lordship at ' 
 once desired the counsel not to mention it, frankly ad- 
 mitting that his previous dictum had been "improvi- 
 dently thrown out." 
 
 Here, it is seen that there was no delivery, actual or 
 constructive, of the watch, since all the donor did was to 
 make a promise, which simply indicated his i/ntention to 
 bestow the gift, and this, as before stated, is insufficient 
 in any case to create a donatio mortis causd. 
 
 We have stated in a preceding page (v) that every valid 
 gift mortis causd, must be made by actual transfer of its 
 subject by the donor to the donee, where such a delivery 
 can he made. We have also quoted Mr. Roper's remark 
 on the decision in Jones v. Selby, that, in this case " there 
 was no delivery of the trunk to the donee, but of the key 
 only ..." 
 
 The respective significations of these two sentences, the 
 former indicating an exception to the broad rule enun- 
 ciated as to the delivery required in cases of donationes 
 m,ortis causd, and the latter referring to what is called 
 symbolic delivery, must next engage our attention. 
 
 Now, it is obvious that when gifts are made of ordinary 
 
 however, that at the present day the 
 delivery of the key of a box might, 
 under certain circumstances, con- 
 stitute a delivery of the box itself 
 and its contents ; as for instance, 
 where the holder is informed that 
 he is its beneficial owner, and is 
 not merely the custodian of the 
 
 key, as in Trimmer v. Danby, 25 
 L. J. Ch. 424. But we shaU again 
 refer to this point presently. See 
 p. 41. 
 
 (m) Spratley v. Wilson, 1 Holt, 
 N. P. 10. (1815—1817.) 
 
 (v) P. 27. 
 
THE -SUBJECT VIEWED GENEEALLY. 35 
 
 chattels persona], say of a watch, a bag of money, pic- 
 tures, plate, and the like, such articles as these are per- 
 fectly capable of being handed from one person to another. 
 But there are chattels personal, which from their nature, chattels not 
 are not thus manually tran^erable, as, for instance, ships, '^^p'^.'^i^ "^ ™ 
 horses, and carriages, stacks of corn or hay, plate chests 
 heavy articles of furniture, and so forth. 
 
 Accordingly, two questions here arise, first, Can these Two questions 
 things form the subject of a donatio mortis causd f and *" ^® answered 
 
 ° •' concerning the 
 
 second, if they can. How is their valid delivery to be latter things. 
 effected to the donee ? 
 
 The answer to the former question is, that all the Answers. 
 chattels enumerated therein, can be given as donations 
 mortis causd ; accordingly, it only remains for us to in- 
 quire as to the m,odus operandi in bestowing them as such. 
 
 Taking first the case of a ship, we must observe that. Case of a ship. 
 although it is in law a chattel personal, yet it cannot, like 
 most other chattels, be transferred in market overt, for 
 the reason that, " there is no open market for the sale of No open mar- 
 them. Indeed, this species -of property appears from very ag^for'^ordinarv 
 early times to have been evidenced by written documents, chattels. 
 and at present always is so, which other moveable goods 
 rarely are " {v). Such being the case, it is clear that a 
 ship cannot, under any circumstances, by mere word of 
 mouth, be transferred either as a gift inter vivos or 
 Tnortis causd. The mode of assigning a ship as pre- Mode of assign- 
 scribed by law (w), is by Bill of Sale, which is a deed, ™f * ^'^^'^ ^^ 
 evidencing the assignment, and this document forms the 
 true and proper muniment of title to a ship, which the 
 maritime courts of all nations will look for and ordinarily 
 require («). 
 
 (v) Atbot on Shipping, 1. will pass to a vendee or assignee, 
 
 (w) 17 & 18 Vict. c. 120, s. 55. even though the transfer be not 
 
 The Merchant Shipping Act, 1854. registered in accordance with the 
 
 See also 17 & 18 Vict. c. lOi, s. 56, Merchant Shipping Act, 1854. 
 
 and 18 & 19- Vict. c. 91, s. 11. {x) Per Sir W. Scott in the case 
 
 T. ffaymen, 2 H. & C. of the ship The Sisters, 5 Eoh. Ad. 
 
 D 2 
 
 918 ; 33 L. J. Ex. 170, a case which 155. 
 shows that the property in a ship 
 
36 WILLS OF PERSONAL PEOPEETY. 
 
 Remark as to It is perhaps almost superfluous to remark that the 
 a ship. ^° bill of sale, with which we are at present dealing, has 
 nothing to do with the instrument of the same name 
 by which mortgages of personal property are at the 
 present day commonly effected. (See 17 & 18 Vict. c. 36, 
 s. 7.) 
 Formalities The bill of sale required in the transfer of a ship must 
 
 transfer oia, ^ ^6 executed by the transferor, in the presence of one or 
 sUp enume- more witnesses, and the transferee must make a declaration 
 that he is a fit person to be the owner of such property. 
 The bill of sale and declaration should then be produced 
 to the registrar of the port at which the ship is registered, 
 who thereupon enters the transferee's nanSe in a book 
 kept for the pui-pose. The officer next indorses on the 
 bill of sale a notification of such entry, thereby completing 
 the transaction, and no doubt a due delivery to a donee of 
 this bill of sale by the owner of the ship, if made by him 
 in contemplation of death, would pass the property as a 
 Opinion of donatio mortis causd (x) . The opinion of Lord Chan- 
 or OSS yn. pg^Q^ Kosslyn Seemed to be that such a donation of any 
 other chattel incapable by its nature of manual delivery, 
 might be effected by the mere transfer of an ordinary 
 deed or writing (y) ; but this is doubtful (z) ; and as to 
 ships, we have seen that a series of formalities is pre- 
 scribed by statute for their due and valid transfer. 
 
 With regard, however, to other chattels personal, the 
 chief Acts of Parliament which apply to their transfer, 
 are those cited below (a), and, as remarked in a former 
 page (6), — if chattels are given by deed, as donations 
 mortis causd, it is not clearly apparent why the simple 
 
 (x) Toller, Exors. 233. Frauds ; 12 & 13 Vict. c. 106, s. 
 
 (y) Tate v. Hilbert, 2 Ves. jun. 126). As to the effect of selling a 
 
 120, cited in Toller. stolen or wrongfully taken Iwrse in 
 
 (s) 1 Eop. Leg. 12. "Wms. market overt, see 2 & 3 Ph. & M. 
 
 Exors. pt. 2, bk. 2, ch. 2, s. 4, c. 7, and to other horses, 31 Eliz. 
 
 p. 780 ; and see amte, p. 5. c. 12 ; and see Moran v. Pitt, 42 
 
 (a) 13 Eliz. c. 5 ; 27 Eliz. c. 4 ; L. J. Q. B. 47. 
 29 Car. 2, c. 3, s. 17 (Stat, of (i) P. 5. 
 
THE SUBJECT VIEWED GENERALLY. 37 
 
 delivery of such instrument should not alone operate as a 
 perfect delivery of the property comprised in it. 
 
 As to certain heavy chattels, such as carriages, horses, Carriages, 
 and so forth, of which it is evident that a person could othercSteis 
 not make a manual tradition to a donee, it would seem not portable or 
 that success in bestowing things like these as gifts mortis transferable. 
 causd, depends to a great extent upon the ingenuity 
 exercised by the donor or his advisers as to the method 
 adopted for effectuating the object in view. 
 
 The case of Miller v. Miller (c) is in point. There, a Mmr r. 
 testator two days before his death, verbally stated that ^''^^■ 
 he gave his wife a carriage and a pair of horses. The 
 words were uttered in the presence of three witnesses, who 
 at his bidding made a memorandum of the transaction in 
 writing. Sir Joseph Jekyll, M. R., held that this was no 
 gift, because there was no delivery thereof in the donor's 
 lifetime either by himself or by his order. Now, had this 
 testator been cognizant of the law's requirements on this 
 subject, he might have easily bestowed his caniage and 
 horses as a. good' donatio mortis causd, in one of two ways. 
 In the first place, he might have appointed an agent to Donor's agent 
 make a manual tradition of them to his wife, or he might *? '^}'^™'' 
 
 ' ° chattel to 
 
 himself have given her the keys of the stables and coach- donee, 
 
 house, which being the m^ans of securing possession oi The gift of keys 
 
 the gifts, would probably, even at that period, have been obtaining pos- 
 
 deemed sufficient to confer the carriage and horses upon session of gift 
 
 ° , ■*■ m/yi'tis causa, 
 
 h.ex&%& gdimortiscausd{d). Most certainly such would Deed without 
 be the case now-a-days, and perhaps to the two methods of its delivery. 
 delivery indicated, might be added that other one, con- 
 cerning which, however, there at present exists a doubt, 
 namely by a deed without delivery of the property com- 
 prised in it. 
 
 (c) SP.'Wms. 356. (1735.) the distinction between a donor 
 
 (d) See Lord Hardwicke's judg- causing a gift to be delivered to a 
 ment in Ward v. Turner, 2 Ves. party, and delivering the gift to an 
 431. (1752.) agent as such for himself, the giver. 
 
 iVbte.— The reader is reminded of 
 
38 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Observations 
 on the above 
 case. 
 
 Smith V. Smith V. Smith (e), which contains a ruling of Lord 
 
 Hardwicke when C. J., is an old Nisi Prius case, and turns 
 upon this particular point we are discussing, namely, the 
 effect of a donor delivering to a donee the key of a place 
 wherein is property, intended to be given mortis causd. 
 The facts were these : A. lodged habitually at B.'s house 
 in London, and when A. went out of town, he used to leave 
 the keys of his rooms with B. A. had plate, &c., in B.'s 
 house, and he had been heard to say, that whatever he 
 brought there was intended as a gift to B.'s wife. On 
 A. dying intestate, trover was brought against B. for A.'s 
 goods, but Lord Hardwicke ruled, that the fact of the keys 
 of A.'s rooms being in his possession, coupled, it is pre- 
 sumed, with the other fact of A.'s previous statement, would 
 bestow the possession of the property on B. This, which 
 has been styled " a very confused case," is, however, useful 
 in two respects ; in the first place, it correctly states the 
 law, enunciated too by a judge of immortal celebritj', 
 and, secondly, it further shows the tendency of our great 
 masters of legal principles and learning, to give effect to 
 a man's intention in regard to the bestowal of his gifts, 
 verbal or otherwise. In short, well illustrates the spirit of 
 the maxim — Boni judicis est ampliare jurisdictionem — 
 or, as Lord Mansfield says, justitiam. 
 
 Janes v. Selby. In speaking on the case of Jones v. Selhy (/), we quoted 
 the remarks of the learned Mr. Koper, in which he indicates 
 that, although this case was decided on the equitable 
 ground of satisfaction, yet it might equally well have been 
 decided on the ground of non-delivery, since delivery of 
 the key of a box is not delivery of the box itself, and that, 
 therefore, the donation was imperfect {g). 
 
 This view, however, of Jones v. Selhy, although pre- 
 viously quoted by way of illustrating the subject of de- 
 livery, does not appear to be in accord with more modern 
 
 Opposite views 
 as to JoTies v. 
 Sdly on this 
 point. 
 
 (e) 2 Strange, 955. (1734.) See 
 the remarks of Gibbs, C. J. , on this 
 case, in Bunn v. Markham, 7 Taunt. 
 
 224. 
 
 (/) At p. 32. 
 
 (?) 1 Eop. Leg. 16. 
 
 (1847.) 
 
THE SUBJECT VIEWED GENERALLY. 39 
 
 opinions, and Mr. Justice Williams states that "the delivery 
 of the key of a trunk has been decided to amount to the 
 delivery of a trunk and its contents ;" for which statement 
 he cites the case in question as an authority Qi). 
 
 The same writer in the same place, next mentions the ^°°^ in a 
 
 , J 1 ■ 1 1 • 1 warehouse 
 
 analogous case oi .goods m a warehouse, which may pass delivered by 
 to a donee mortis causd, when the key of the warehouse means of a key. 
 is delivered to him by the donor as a means whereby he 
 may obtain and keep possession of the property. 
 
 Thus, the law seems to be settled on this portion of Symbolic 
 
 , . 1 1 . . „ delivery by 
 
 the present subject; but there remams one more point for giving a key. 
 our observation, and that is the precise signification of 
 the act of delivering a key, or other appliance, with a 
 view to effect a donatio mortis causd of a chattel which 
 cannot, from its nature or other circumstances, be manu- 
 ally transferred by the donor thereof to a donee. 
 
 Suppose that a person in contemplation of death, wished Illustrative 
 to give another a quantity of wheat lying on the floor of 
 a barn. It might here be thought that, if the delivery 
 of a box key would effect a transmutation of the posses- 
 sion of a box and its contents, in the same way a handful 
 of this wheat delivered to a donee would, if accompanied 
 with suitable words, be a sufficient gift of the whole bulk. 
 • But this act would really only amount to evidence of 
 the wheat's existence, or merely of an intention to give 
 the whole. Accordingly it would be quite useless as a 
 delivery. 
 
 An attempt to thus deliver possession of goods is what 
 the law calls symbolic, " and no property could thereby be 
 transferred to the donee," or at the utmost, only a right 
 of action; and "such a delivery, with a view to constitute 
 a donation mortis causd, cannot be established " (i). 
 
 The celebrated case of Ward v. Turner is the leading The case of 
 
 \Va7-d V. 
 Turner, 
 (h) 1 "Wms. Exors., pt. 2, bk. 2, 1838. See p. 233. 
 ch. 2, p. 776. The same view is (i) 1 Rop. Leg. 10 ; Judgment of 
 
 held in Toller on Exors., the last Lord Hardwickp in T^ard v. Turner, 
 edition of which was published in 2 Ves. 431 ; 1 L. C. Eij. 905. 
 
40 WILLS OF PERSONAL PROPERTY. 
 
 authority to show generally that delivery is necessary to 
 constitute a valid donatio mortis causd, and particularly 
 that delivery of receipts for South-sea Annuities, and pre- 
 sumably therefore of other kind of stock, being merely 
 symbolical, is not sufficient for this purpose, though strong 
 evidence of the donor's intent. 
 
 The facts, shortly stated, were these : — A Mr. Fly, a 
 solicitor, had in his possession three receipts for South-sea 
 Annuities, which sometime before his death he gave to one , 
 Mosely, saying : " I give you, Mosely, these papers, which 
 are receipts for South-sea Annuities, and will serve you 
 after I am dead." Ward, Mosely's executor, having filed a 
 bill in Chancery against Turner, Fly's administrator, for 
 the transfer of the amoimt of these securities, £600, Lord 
 Hardwicke gave judgment in Turner's favour. His lord- 
 ship observed that after the stock had been transferred to 
 Fly, the donation of the receipts for it was merely symbo- 
 lical, in fact, that these documents were simply so much 
 waste paper; also that even if Fly had delivered his broker's 
 note to Mosely, there would have been no delivery of the 
 possession of the stock without a transfer of the same, or 
 something amounting to that, into Mosely's name. It 
 appeared, moreover, in the course of the case, that Mosely 
 had not retained an uninterrupted possession of these 
 receipts up to the time of Fly's death, so that supposing 
 them to have had any value, the circumstance in question 
 would have invalidated the gift of them mortis causd, since 
 a donor mortis causd must not only part with the posses- 
 sion of his gift, but also any dominion or control over it, 
 although the property therein will still remain with him.' 
 Gift of stock. On the authority therefore of Ward v. Turner, we may 
 assume that no gift, whether inter vivos or mortis causd, 
 of any kind of stock will be effectual, unless there be an 
 actual transfer thereof into the name of the donee. 
 
 Nor, we may here remark, must it be supposed that 
 what may constitute a gift rnortis causd will in every 
 case form a good one inter vivos. The latter requires 
 
THE SUBJECT VIEWED GENERALLY. 41 
 
 that the donor should either part -with the whole interest, 
 property, possession, and dominion, or else clearly make 
 himself a trustee for the donee (k). 
 
 Now, " a symbol is a sign included in the idea which Definition of 
 it represents, e.g., an actual part chosen to represent ^ ° ' 
 the whole. . ." Accordingly, the gift of a portion of 
 the wheat in our imaginary case above stated, and also 
 the gift of Mr. Fly's stock receipts in Ward v. Turner, 
 could only be symbolical of the whole, and therefore 
 respectively powerless by themselves to effect delivery of 
 the gift intended in each instance. 
 
 We may also add that the key of a box, house, &c., may 
 likewise be symbolical, and of course if it be so given, that 
 is, simply as a part for the whole, the gift would then fail. 
 
 The^ true object with which a key or other appliance The true object 
 should be transferred with a view to validate a gift inortis °£ ^^ or oS 
 causd, must be either to confer the beneficial ownership means of 
 of the property on the donee, and of which fact he ought mmi^auS,. 
 to be made fully cognizant; or, on the other hand, to 
 enable him to thereby gain possession of the property 
 intended to be given, and not as "a part for the 
 whole '' of such property. If, therefore, the key be given 
 with the latter object, the donation will fail, if, on the other 
 hand, as the means of securing the property, the transac- 
 tion, as a donatio mortis causd will, ■cceteris paribus, be 
 valid and effectual (I). 
 
 It has been previously observed that a donatio mortis Evidence. ~ 
 causd may correctly be looked upon as a gift in the nature 
 of a bequest, for the reason that its full effect can only be 
 realized after a donor's death. Such being the case, when 
 it is inquired what evidence is required to support a 
 donatio m^ortis causd, we may safely assert that the same 
 
 (Tc) See the notes to Ellison v. who there discusses this point as to 
 
 Ellison, 1 L. C. Eq. 2i5. giving a key to execute a gift Tnorlis 
 
 [1) Ward V. Tvmer. But see caiisd, with his usual clearness and 
 
 Trimmer v. Danby, 25 L. J. Ch. ability. 
 424 ; judgm. of Kindersley, V.-C, 
 
43 
 
 WILLS OF PEKSONAL PKOPEETY. 
 
 Number of 
 witnesses 
 requisite to 
 support a gift 
 mortis cansd 
 not prescribed 
 by law. 
 
 Conflict of 
 opinion as to 
 whether proof 
 is required as 
 to donor's last 
 illness, &c. 
 
 Mr. Roper's 
 opinion. 
 
 Who may give! 
 evidence as to/ 
 the delivery of 
 
 viortis ccmsd. 
 
 Lord Denman's 
 Act, 1843. 
 
 number of witnesses required in the due execution of a 
 Will, namely two, will be sufficient to attest the delivery 
 of a donatio mortis causd. 
 
 The present writer is not aware, however, that the 
 precise number of witnesses required for this purpose has 
 ever been prescribed. What the law requires is, that the 
 evidence shall be clear and beyond suspicion (m), and the 
 main point to which such evidence mxist be directed is the 
 proof of transfer of a donor's possession. 
 
 There appears to be a conflict of opinion as to whether it 
 will be necessary to show that the gift was made during 
 the donor's last illness, or in contemplation of death (n), 
 but it is obvious that so important an element in the 
 constitution of a donatio mortis causd ought at any rate 
 to be capable of proof, should it be called for. 
 
 According to Mr. Roper's opinion — shortly put — on this 
 subject, if the gift be made during the donor's illness or 
 only a few days or weeks before his death, a presumption 
 will arise that it was made in contemplation of death, and 
 during a last illness ; but should the donor live for a long 
 time after making the gift, then in such case evidence will 
 be required as to its having been made in prospect of 
 death, or during his last illness, for the presumption in 
 question cannot then arise. 
 
 In either case, as- the same learned writer proceeds to 
 say, if there be proof given, as of course there may 
 possibly be, that the donation was not made under these 
 circumstances, then, as a gift moHis causd, it will 
 fail. 
 
 It was formerly a rule in our law of evidence, that a party 
 who had an interest in the result of a legal proceeding could 
 not in consequence thereof, be a witness in the matter. 
 But the Legislature, in the year 1843, being of opinion 
 that, "the inquiry after truth in courts of justice is often 
 
 (ro) Walter v. Bodge, 2 Swanst. 
 92 ; Cosnahan v. Grice, 15 Moo. 
 P. C. 771. 
 
 (») 1 Rop. Leg. 21 ; 1 "Wms. 
 Exors., pt. 2, bk. 2, ch. 2, 771, 
 note. 
 
THE SUBJECT VIEWED GENERALLY. 43 
 
 obstructed by incapacities created " by the law as it then 
 stoodj passed, under the guidance of a celebrated judge, a 
 statute (o) which dealt a severe blow to the above mis- 
 chievous rule. The statute in question however, strange 
 to say, did not include the persons who are always best 
 able to inform the judge and jury as to the differences to 
 be determined, namely, the parties in litigation themselves. 
 Accordingly, another enactment was passed in 1851 (p) Amendment 
 to amend Lord Denman's Act, and which made the parties •*^°*' ^^^^' 
 to any suit or action, except for adultery and breach of 
 prqmise of marriage, not only competent, but compellable, 
 to give evidence, either vivd voce or otherwise, in any 
 civil proceeding in which they may be interested. And 
 now, "The Evidence Further Amendment Act, 1869," 
 32 & 33 Vict. * c. 68, allows parties in the last-named 
 forms of proceedings to give evidence therein. 
 
 This being so, when a question arises concerning the The donee 
 validity of a gift mortis causd, the donee thereof may be "''"■*" """?'* 
 
 , I "^ may now give 
 
 a witness himself on the subject, and his evidence wiU evidence on his 
 be received, and will be entitled to the same respect 
 as that of any other person who may be called to give 
 testimonj'. 
 
 It has possibly occurred to the reader that the bestowal ^y' '^^ ^™i- 
 of a doTiatio mortis causd is a proceeding very similar, donatio mortis 
 if not tantamount to making a verbal, or as lawyers """^f.*" a nun- 
 
 ° ' _ •' _ .oupative wiU. 
 
 say, a nuncupative Will (q), but a little consideration will 
 show the distinction between these two modes of dispos- 
 ing of property. We have already indicated (r) wherein 
 a gift mortis causd differs from a written Will, and as 
 the same observations are, in a great measure, applicable 
 
 (o) 6 & 7 Viot. 0. 85 : Lord Den- prohibited by the Wills Act, 1838, 
 
 man's Act. 1 Vict. c. 26, except those made by 
 
 (p) 14 & 15 Vict. c. 99, Law of soldiers, marines, and seamen of the 
 
 Evidence Amendment Act. royal navy when in actual service, 
 
 (q) We shall have occasion in that is, on an expedition. 1 Wms. 
 
 another part of this work to refer Exors., pt. 1, bk. 2, ch. 2, 117. 
 to nuncupative Wills, but it may (r) P. 21. 
 
 here be remarked that they are 
 
41 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Mode of 
 recoTering or 
 defeating the 
 gift by an 
 action in the 
 High Court of 
 Justice. 
 
 Recovery of 
 legacies at law 
 before the 
 Judicature 
 Acts. 
 
 Common Law 
 jurisdiction of 
 a very limited 
 character. 
 
 Grround of 
 equity juris- 
 diction. 
 
 in the case of a nuncupative Will, we need make no 
 further reference to this point (s). 
 
 The last matter for notice in connection with donations 
 mortis causd, is that concerning the mode of recovering 
 or defeating them through the instnimentality of the new 
 High Court of Justice. 
 
 Before the recent Judicature Acts (t), if an executor or 
 administrator cum testamento annexo had assented to a 
 specific legacy (u), an action of trover might have been 
 maintained by the legatee for the recovery of his legacy, 
 or, if an executor held a general legacy (m) to which _he 
 had expressly assented, it might have been recovered in 
 an action under the common count for money received, 
 provided that the defendant held the amount merely as 
 an agent, and not in his character of executor (x). 
 
 But, as a matter of fact — almost inferable from the above 
 statement— the jurisdiction possessed by the late Common 
 Law tribunals over the subject of legacies was of a very cir- 
 cumscribed character, and chiefly for the reason that they 
 were unable to impose terms on the parties suing, whereas 
 Courts of Equity could do so (y). The consequence of this 
 was that equity, long ago considering an executor to be a 
 kind of trustee for the legatees under a Will, made that 
 circumstance one of the main grounds of its jurisdiction 
 in enforcing payment by the executor of a legacy, or dis- 
 tribution by him of personal estate (z). 
 
 {s) As to the Roman Civil Law 
 concerning Donations mortis catisd, 
 see Just. Inst. 2, 7, 1, and the note 
 in Sandars's edition. 
 
 {t) 36 & 37 Vict. c. 66, and 38 & 
 39 Vict. c. 77. 
 
 {u) By a specific legacy is meant 
 a gift by Will of some particular 
 specified thing as a term of years, a 
 horse, a piece of furniture, and so 
 forth. A general legacy is one of 
 a pecuniary character, payable out 
 of a testator's general assete. But 
 
 money in a bag or box may be a 
 specific legacy (Lawson v. Stitch, 
 1 Atk. 508). 
 
 (x) See 2 Wms. Exors., pt. 5, 
 bk. 2, ch. 1, 1934, and the cases 
 there cited. Toller, Exors. 46.', 
 466. 
 
 (y) Decks v. Struit, 5 Term Rep. 
 690 ; judgt. of Lord Kenyon, C. J.; 
 Jones V. Tanner, 7 B. & C. 642. 
 
 (s) Sto. Eq. Jur. ch. 9, § 534 ; 
 Sm. Man. Eq., Tit. 2, commence- 
 ment of Chap. 1. 
 
THE SUBJECT VIEWED GENERALLY. 45 
 
 What little authority in these matters was possessed Ecdesiastioai 
 by the old Ecclesiastical Courts was abolished by the ibSished°i!i 
 20 & 21 Vict. c. 77, s. %Z, so that Equity has now, and 1857. 
 practically had before this statute, an exclusive jurisdic- 
 tion over proceedings, or, to speak technically, over the 
 remedies, for the recovery of legacies, except under the 
 circumstances above mentioned. 
 
 The usual mode in which the judgment of the Courts Chancery 
 was obtained until November 1, 1875, was by bill in ^™°^ "™' 
 Chaiicery ; but an easier method for conducting this 
 species of litigation was provided by the statute 15 & 16 
 Vict. c. 86, s. 45, known ais the Jurisdiction Act, 1852, Jurisdiction 
 under which a specific, pecuniary, or residuary legatee, ' 
 or a creditor, might, as of course, without bill filed or any 
 other preliminary proceeding, have obtained a summons 
 from any of the Chancery Judges of first instance, requir- 
 ing the executor or administrator to attend before him in 
 Chambers, and show cause why an order for the adminis- 
 tration of the deceased's personal estate should not be 
 made. When the order was granted it had the force and 
 effect of a decree to the like effect made on the hearing 
 of a cause between the same parties. 
 
 The result of the order, when made, was simply to ^^f' "f Order 
 compel the executor or administrator to account for the 
 personal estate held by him ; but should there have been ^^ere bill 
 
 ft . necessary. 
 
 reason for seeking to make him liable for any misappro- 
 priation of the assets, or for other misconduct in regard 
 thereto, then a bill must have been filed for the purpose, 
 and this, it has been decided, was the proper course to 
 take under such circumstances (a). 
 
 After the decree, whether obtained by bill or summons, ^'i^g^l"'"'''^ 
 the next step was to put it in force, and for this purpose 
 the parties attended before one of the chief clerks in Chan- 
 cery, who then gave a certificate or statement furnishing 
 the result of his . inquiries into the accounts and other 
 matters mentioned in the decree. 
 
 (a) Smith v. Spilsbury, 1 Drewry & Sm. 151. (1860.) 
 
46 
 
 WILLS OF PERSONAL PROPERTY, 
 
 What, if any, 
 changes have 
 heen made in 
 this procedure 
 by the Judica- 
 ture Acts. 
 
 The terms 
 ' ' Suit "and 
 "BiUin 
 Equity" 
 abolished. 
 
 Substitution of 
 ■word "action" 
 for all pro- 
 ceedings in the 
 High Court of 
 Justice. 
 
 The name 
 "Court of 
 Chancery " 
 abolished. 
 
 How the old 
 procedure as 
 regards re- 
 covery of 
 legacies, ko. 
 is affected 
 generally. 
 
 Assignment of 
 particular 
 classes of 
 causes to cer- 
 tain divisions 
 of the High 
 Court of 
 Justice. 
 
 Exclusive 
 jurisdiction of 
 the "Chancery 
 Division " in 
 certain matters. 
 
 Judicature 
 Acts do not 
 change the 
 above pro- 
 cedure for the 
 recovery of 
 legacies, &c. 
 
 In consequence of the changes caused by the Judicature 
 Acts, we have, as on a previous occasion, spoken in the 
 past tense of this form of proceduje. Let us now see, step 
 by step, whether these statutes actually do affect it. 
 
 By the new Judicature Acts, the terms "suit" and 
 " bill " as applied to original proceedings in the former 
 Court of Chancery are abolished, and all such proceedings 
 for the future in the High Court of Justice, except those 
 of a criminal character instituted by the Crown, will be 
 designated by the word " action ;" and the term " cause " 
 is to include any action and also any criminal proceeding 
 by the Crown (b). 
 
 The Court of Chancery is henceforth to be called the 
 Chancery Division of the High Court of Justice. 
 
 Where no other provision is made by these Acts or the 
 Rules appended to them, the procedure and practice in 
 existence before their date will still remain in force (c). 
 
 By sect. 34, sub-sects. 2 and 3 of the first Act, it is 
 made compulsory to assign certain causes and matters to 
 the Chancery Division of the High Court of Justice, and 
 among them are all those then pending in the Court of 
 Chancery, and such as shall be commenced after the com- 
 mencement (sic) of the Act, under any Act of Parliament 
 by which exclusive jurisdiction, in respect to such causes 
 and matters has been given to the Court of Chancery, or 
 to any judges or judge thereof, except appeals from County 
 Courts : also all causes and matters for the administration 
 of the estates of deceased persons. 
 
 This being so, the practice under the Jurisdiction Act, 
 1852, in administration proceedings, to which we have 
 alluded, — and to which further reference will be made 
 when we come to treat of Executors and Administrators — 
 is really not changed, since no other provision of a con- 
 trary character appears in the Judicature Acts, or in any 
 of the Rules of Court made under them. 
 
 (6) 36 & 37 Vict. c. 66, s. 100. 
 
 (c) 38 & 39 Vict. c. 77, schedule 
 . Preliminary note. 
 
THE SUBJECT VIEWED GENERALLY. 47 
 
 The only alteration effected in this particular procedure Affect the 
 is that the papers therein, as in all others now, are entitled ^°^.°^ 
 as "In the High Court of Justice, Chancery Division," documents. 
 instead of as heretofore, " In Chancery," and that, in lieu 
 of a Bill of Complaint made in a suit in Equity we have 
 substituted a Statement of Claim — which is only a sim- 
 plified form of the old bill in Chancery — made in an 
 Action in the High Court of Justice. 
 
 By sect. 77 of the first Judicature Act, it is provided Ministerial 
 that all existing officers performing the ministerial duties Courts, how 
 in aid of, or connected with any Court united and consoli- ^*^^<'*®'*- 
 dated with the Supreme Court of Judicature, shall be 
 transferred thereto. The duties to be henceforth per- 
 formed by these officers will be directed by the Rules of 
 Court, subject to this qualification, that such duties shall 
 be the same, or duties analogous to those which they per- 
 formed previously to the passing of the Act; also that 
 they shall continue to perform the same duties as nearly 
 as may be in the same manner as if the Act had not 
 passed. The functions of Chief Clerks in Chancery Divi- Chief Clerks 
 sion of the High Court of Justice, are not even alluded to '" °'^'^^' 
 by the present Rules of Court; so that putting all the 
 above circumstances together we may thence conclude 
 that the practice hitherto followed in regard to proceed- 
 ings connected with administration causes and matters, 
 and which practice we have above shortly described, is 
 still in force just as it was before the Judicature Acts 
 were passed. 
 
 It may now be asked what all this has to do with dona- Jurisdiction of 
 tions mortis causd. The reader wiU find on a perusal of of justice in"' 
 the cases cited on this subject that the majority of them causes concern- 
 were decided in the Court of Chancery, and that the ques- mortis causd. 
 tions concerning them were for the most part raised in 
 administration suits, because a donatio Tnortis causd is a 
 gift in the nature of a legacy, and the Court of Chancery, 
 as we have seen, had exclusive jurisdiction over claims for 
 legacies and those made upon the effects of intestate per- 
 sons. The only distinction between gifts by Will and those Former dis- 
 
 '' a J tinotion be- 
 
48 
 
 WILLS OF PERSONAL PROPERTY. 
 
 tween legacies 
 and donations 
 mortis causd 
 in respect to 
 the mode of 
 recovering 
 them. 
 
 Modem prac- 
 tice. 
 
 Rolfs Act, 
 1861. 
 
 Chancery Divi- 
 sion of High 
 Court of Jus- 
 tice retains 
 jurisdiction in 
 matters con- 
 cerning dona- 
 tions mortis 
 causd. 
 
 Conclusion of 
 the subject. 
 
 Keal estate 
 may be equiva- 
 lent to person- 
 alty in certain 
 cases. 
 
 mortis causd in this respect, was in fact that which has 
 been pointed out as existing between a donatio fnortis 
 causd and a legacy under a nuncupative Will, namely, that 
 the former is claimed against the executor or adminis- 
 trator, while the latter is claimed /rom them {d). 
 
 " According to the modem practice, where there is any 
 doubt whether, in point of fact, there was that which 
 would constitute a good donatio tnortis causd, if in point 
 of law the subject of it can be made the subject of such a 
 donation, it has been usual for a Court of Equity to direct 
 an issue or issues to try that fact " (e). 
 
 But by Sir John Rolfs Act, 24 & 25 Vict. c. 42, it became 
 obligatory on the Court of Chancery to decide all questions 
 of law or fact on the determination of which the title to 
 relief or remedy might depend (/), and it was decided that 
 the Court under the Act was bound to determine questions 
 of fact without remitting the parties tdJ an action at law 
 under the old system {g), and if required by any party to 
 the cause, by a jury before itself (A). 
 
 These powers have descended upon the Chancery Divi- 
 sion of the High Court of Justice, which as we have seen 
 has exclusive jurisdiction in administrative matters, and 
 accordingly in those appertaining to the majority of do- 
 nationes mortis causd, inasmuch as questions concerning 
 these for the most part arise in administration suits, or as 
 they are now called, actions. 
 
 Such is a slight sketch of the state of the law as regards 
 this species of gift, and we now return to the considera- 
 tion of some other points more closely connected with our 
 main subject. 
 
 Although a legacy usually consists of money, goods or 
 other chattels, yet if realty be devised for purposes of sale 
 of which the proceeds are directed to be invested for, or 
 
 (d) 1 Wms. Exors., pt. 2, bk. 2, 
 781. 
 
 («) Id. 783 ; citing Lord Eldon's 
 judgment in Duffield v. Elwes, 1 
 Bligh, N. S. 531 ; 1 Rop. Leg. 23. 
 
 (/) In « Hooper, 32 L. J. Ch. 
 
 55 ; Young v. Femie, 1 De G. J. & 
 S. 353 ; 33 L. J. Ch. 192. 
 
 (g) Sgmont v. Sarell, 1 Hem. & 
 M. 563. 
 
 (h) Under 21 & 22 Yict. c. 27. 
 
THE SUBJECT VIEWED GENERALLY. 
 
 49 
 
 handed over to, certain specified persons, such real estate 
 is, in the view of Equity, equivalent to personalty, on the 
 principle of the maxim that Equity looks upon that as 
 done which ought to be done (i). 
 
 Such land is also a legacy in contemplation of law. Legacy duty is 
 since the statutes which provide for the payment of duty py?'^ie where 
 on legacies (k), declare that the same duty shall be im- directed by 
 posed upon realty directed to be converted into personalty, ^rteti into '"'' 
 as if it had been, in the first instance, money in the pos- ^°^ej- 
 - session of the testator at his death (I). 
 
 Money dir-ected to be laid out in land may also, under Money ordered 
 certain circumstances, be chargeable with legacy duty ; as *° ^ J?''^ ""* 
 where a person succeeds to the possession of such money 
 before it has actually been converted into land (m) ; but 
 generally, in accordance with the maxim above stated, 
 equity will regard money ordered by a testator to be con- 
 verted into realty as such, and vice versd (n). This prin- 
 ciple, known under the name of the equitable doctrine of 
 constructive Conversion, is not only applicable to cases of 
 Wills, but also to those where the property is directed to 
 be converted by way of contract, marriage settlement, or 
 in any other manner (n). 
 
 A legacy may also be of money raised annually by k rent-charc/e 
 way of rent-charge (o), or by ordinary annuity (p) ; but no mayTe"!^ 
 sum of money which by any marriage settlement shall be legacy, 
 subjected to any limited power of appointment to or for 
 
 (■i) Fletcher v. Ashhurner, 1 Bro. (to) Fletcher v. Ashlurner, supra; 
 
 C. C. 497 : judgment of Sir T. SeweU, Sto. Eq. Jur. §§ 790—793, § 1213. 
 M. E. See the notes to this case (o) Att.-Qen. v. Jackson, 2 Or. & 
 
 and that of Ackroyd v. Smithson, 1 Jer. 101 ; Stow v. Davenport, 5 B. 
 
 L. C. Eq. 826, 872. & Ad. 359 ; Mamergh v. Campbell, 
 
 (k) 36 Geo. III. c. 52 ; 45 Geo. 3 De G. & J. 232 ; 28 L. J. Ch. 61 ; 
 
 III. c. 28, s. 4 ; 8 & 9 Vict. o. 76, Booth v. CovXton, L. R. 5 Ch. 684 ; 
 
 s. 4 ; 16 & 17 Vict. c. 51, s. 53. 39 L. J. Ch. 622. 
 
 {Vj The Ad/Bocate-Efen. v. Smith, (p) Exempli gratiA, see Alder y. 
 
 1 Macq. H. L. Cas. 760 : judgment Lawless, 32 Beav. 72 ; Crow v. 
 
 of Lord Cranworth. BoUnson, 31 L. J. Ch. 616 ; Wake- 
 
 (m) De Lancey v. Com. of Inland Jiwm v. Merrick, 37 L. J. Ch. 45 ; 
 
 Mevemte, L. E. 3 Ex. 345 : 38 L. J. Poole v. fferon, 42 L. J. Ch. 348. 
 Ex. 193. 
 
50 
 
 "WILLS OF PERSONAL PEOPERTY. 
 
 What is a 
 legacy for the 
 purposes of the 
 Legacy Buty 
 Acta. 
 
 "Annuity" 
 when equal to 
 "legacy" in a 
 ■wiU. 
 
 Annuity where 
 capital is given 
 over. 
 
 Forgiveness of 
 debt may be a 
 legacy. 
 
 Bequest of 
 money to pay 
 testator's 
 debts not a 
 legacy ; other- 
 wise, where 
 given to pay 
 another per- 
 son's r 
 
 the benefit of any person or persons specially named or 
 described as tbe object or objects of such power, or their 
 issue, shall be deemed liable to duty as a legacy (q), be- 
 cause this amounts only to a gift by marriage settlement. 
 
 What is a legacy for the purposes of the Legacy Duty 
 Acts, may be seen in the statute mentioned below (g). 
 
 The word "annuity" in a Will may be equivalent to 
 "legacy," unless a contrary intention be clearly appa- 
 rent (r), and an annuity may be either a charge upon, and 
 payable wholly, or to make up a deficiency, out of the 
 corpus of an estate, in or payable out of the rents, profits, 
 dividends or interest arising from any species of property 
 whatsoever (s). 
 
 The residuary clause in a Will bequeathing all the rest, 
 residue, and remainder of a testator's personal estate will 
 pass an annuity (f). 
 
 The gi-ant Of an annuity out of rents and profits, or divi- 
 dends and interest, where the capital is given over, from and 
 after satisfaction of the annuity, and subject thereto, is equi- 
 valent to the case of a legacy and a residuary bequest (m) ; 
 but, as remarked by Lord Macclesfield, a charge on land 
 seems not to be so strong as a gift of a legacy (x). 
 
 Forgiving a man a debt, is tantamount to bequeathing 
 him a legacy, and legacy duty must be paid on the 
 amount of the debt forgiven (y). 
 
 Where A. bequeaths money to be expended in the 
 payment of his own debts, his creditors take simply as 
 
 (y) 8 & 9 Vict. c. 76, s. 4. 
 
 (?•) Narmock v. JSorton, 7 Ves. 
 390 ; Sibley v. Perry, 7 Ves. 522 : 
 judgment of Lord Eldon. 
 
 {s) Exempli gratid, see Thomher 
 V. Wilson, i Drew. 350 ; 28 L. J. 
 Ch. 145 ; Todd v. Bielby, 27 Beav. 
 353 ; Fotts v. Smith, L. R. 8 Eq. 
 683 ; 39 L. J. Ch. 131 ; Percy v. 
 Percy, 35 Beav. 295. 
 
 (t) AuUn V. Daly, 4 B. & Aid. 
 69. 
 
 (m) Sirch V. SherraU, L. E. 2 Ch. 
 644 ; 36 L. J. Ch. 925, per Eolt, 
 L. J. The word ' ' over" used in the 
 text signifies the change in the 
 ownership of the property from one 
 person to another. 
 
 (x) Samle v. Blackett, 1 P. "Wms. 
 777. 
 
 (y) Attorney-General v. Holbroolc, 
 3 Yo. & Jer. 114 ; Morris v. Livie, 
 I Yo. & Coll. Ch. Ca. 380 ; 11 L. J. 
 Ch. 172. 
 
THE SUBJECT VIEWED GENERALLY. 51 
 
 such (z) ; but if the money be left for the purpose of 
 paying B.'s debts, creditors in this case are legatees, and 
 must pay legacy duty or renounce their claims (a). 
 
 It has long been a settled doctrine of Equity, that where Legacy by a 
 a father bequeaths a legacy to a legitimate child, without ^^m^^''*,*'' * 
 stating the purpose for which it was given, he is to be considered. 
 presumed as having intended such legacy as a Portion, 
 whether he expressly calls it so or not (&), because it is a 
 provision by a parent for his child (c), the duty to make 
 which, according to Lord Hardwicke, is a debt of nature {d). 
 
 The same doctrine may also be applied in cases where a Persons m loco 
 person had assumed a parental position in regard to a i"»»"«™*'««'- 
 child, or, in legal language, has placed himself in loco 
 parentis towards him, as where a settlement made by an 
 uncle on his niece at her marriage, satisfied a legacy of 
 the same amount intended to be left her by his will (c). 
 
 A Portion is a provision secured in any way to a child Portion and 
 by a parent, or by s.ome other person standing in loco defined. ' 
 parentis; and such child is called a Portionee. The term 
 properly designates only gifts or settlements made by and 
 for others standing in this relation to each other, and not 
 gifts to strangers, that is persons who are not legitimate 
 children of the donor or settlor, or children to be benefited 
 by the person in loco parentis. A legacy given to a 
 stranger is properly termed a Bounty. "Bounty." 
 
 If a child be provided for by his father by gift or settle- ^^^J^ legacy is 
 ment, and he afterwards bequeaths to the same child a be a portion. 
 legacy equal, or nearly so, as to its various incidents, to the 
 amount previously secured, then in the absence of a con- 
 
 (s) Williamson v. Nmylor, 3 Yo. Eq. ; Povn/s v. Mansjicld, 3 Myl. & 
 
 & CoU. Ex. Rep. 208. Cr. 359 ; 7 L. J. Ch. 9. 
 
 (a) Foster v. Ley, 2 Biug. N. C. (d) Shudall v. Jelcyll, 2 Atk. 517. 
 
 269. Lord Eldon, towever, in his judg- 
 
 (6) 1 Eop. Leg. 366 ; Sm. Man. ment in ExpwrtePyc, rightly calls 
 
 Eq. tit. 2, ch. 2. the ahove "an artificial notion," 
 
 (c) Ex parte Pye, Dubost, 18 and states that legitimate children 
 
 Ves. 140 ; Judgment of Lord Eldon, have been harshly treated hy its 
 
 and the notes to this case in 2 L. C. appHcatiou to their cases. 
 
 E 2 
 
52 
 
 WILLS OF PERSONAL PKOPEETY. 
 
 "Satisfaction'' 
 of portion by a 
 
 Equity does not 
 favour the 
 theory of 
 double 
 portions. 
 
 Satisfaction of 
 legacy by a 
 portion. 
 
 Constnictive 
 Ademption of 
 a legacy by 
 portion. 
 
 trary intention appearing in his Will, this legacy must, 
 according to the present state of the law, be strongly pre- 
 sumed to be meant as a substitution of the former pro- 
 vision, or as it is technically called, a Satisfaction of the 
 Portion (e). In other words, a primd facie presumption 
 arises that the father did not intend to confer a two-fold 
 benefit; hence the dictum that Equity leans against 
 double Portions. 
 
 Conversely, as before indicated, when a legacy is in 
 the first instance stated in some existing Will as bequeathed 
 by a father to a child, and subsequently a gift or other 
 provision is made inter vivos with a view to benefit the 
 same child, this legacy after the testator's death is regarded 
 as a Portion, and is said to be adeemed by the second 
 gift, &c., that is to say, it is satisfied thereby, although of 
 course as before, only in the absence of a contrary inten- 
 tion clearly apparent (/). 
 
 But " where the gift by the Will and the portion are not 
 ejusdem generis, the presumption will be repelled. Thus 
 land wiU not be presumed to be intended as a satisfaction 
 for money, nor money for land." (2 White and Tudor's 
 L. C. in Eq. ; notes to Ux parte Pye, p. 394.) 
 
 This kind of ademption or satisfaction of a legacy is 
 termed constructive ; that .is to say, it is inferred by the 
 law, and is not founded upon any positive direction of a 
 testator. The doctrine has never been applied to legacies 
 to strangers — or in other words, those who are, as before 
 stated, not legitimate offspring of a testator — unless under 
 some peculiar circumstances, as where a legacy is given in 
 
 a case where no satisfaction was held 
 to exist. 
 
 (/) 1 Rop. Leg. Oh. 6, wherein 
 the subject of ademption is treated 
 of generally ; 2 Wms. Exors. pt. 3, 
 blc. 3, sect. 2 ; Lord Eldon's Judg- 
 ment in Ex parte Pye, supra ; and 
 see Hopwood v. Hopwood, 7 H. L. 
 Cas. 728 ; 29 L. J. Ch. 747. 
 
 («) SinchcUffe v. Hi-nchdiffe, 3 
 Ves. 616 ; Weall v. Rice, 2 Euss. & 
 Myl. 251 ; 9 L. J. Ch, 116, and see 
 on this case, 2 Tayl. Evid. § 1112 ; 
 Thymm v. OUngall, 2 H. L. Cas. 
 131, 153 ; Campbell v. Campbell, 
 L. R. 1 Eq. 383 ; 35 L. J. Ch. 241 ; 
 and see the subject discussed in 
 Chichester v. Coventry, L. E. 2 H. 
 L. 71 ; 36 L. J. Ch. 673, which was 
 
THE SUBJECT VIEWED GENERALLY. 53 
 
 a Will for a special purpose, and the testator before his 
 death advances a like sum for the same object and none 
 other. In such a case the legacy will be adeemed (c/), 
 but if the above fact cannot be shown where a stranger is 
 concerned, he will take both gifts (h). 
 
 As between strangers, the onus probandi is upon Onusprohandi 
 those who contend that the two provisions are to be ^tiiose cases 
 
 _ -^ where strangers 
 
 considered but as one ; whereas in the case of children, are legatees, 
 the onus probandi is upon those who contend for the double iT^}'i^e case of 
 provision (g). In the lattei", " the presumption of satisfac- 
 tion is indeed so strong, that it is difficult to say what 
 circumstances of variation between the portion and the 
 legacy will be sufficient to entitle the child to both (i)." 
 
 A portion of less amount than a legacy to a child from Satisfaction 
 a parent, will now be considered as a satisfaction of the ^"'^ ademption 
 
 , . pro tanto. 
 
 legacy pro tanto only (k), and vice versa, which is but bare 
 
 justice to the child, and it is not easy to see any real 
 
 ground for distinguishing between children and strangers 
 
 at all in these matters. It is said, however, that while the Reasons why 
 
 gift of a parent to his child may be presumed, and fairly strangers are 
 
 regarded as, the utmost amount which he, from a sense of 
 
 duty and affection, considers himself called upon to spare, 
 
 if he afterwards bequeaths a similar amount to the same 
 
 child, this circumstance standing alone, indicates that he 
 
 only meant to advance his child to the same extent as 
 
 before, in fact that the two gifts are only one (l). Whereas, 
 
 in giving a legacy to a stranger, "there is as much 
 
 reason in such cases, why the testator should choose to 
 
 (g) Sm. Man. Eq. tit. 3, ch. 10 ; 154 ; 6 L. J. Ch. 15. 
 Wh. & Tu. notes to Ex parte Pye, (Ic) Pym v. LocTcyer, 5 Myl. & 
 
 supra. Cr. 29 ; 10 T.. J. Ch. 153 ; Kirk t. 
 
 {h) See note (c), p. 51. As to the Eddowes, 3 Hare, 509 ; 13 L. J. Ch. 
 
 satisfaction of debt by a legacy, see 402. See also Eopwood v. Bopwood, 
 
 Talbotv.Shrewsbury,2h.G.Eq.Z79. supra, n. (/). 
 
 (») Wms. P. P. 319 ; see the {I) Sm. Man. Er[. ut supra, an 
 
 Judgment of Sir "W. Grant, M.R., see the Judgment of the Lords 
 
 in Hartopp v. Hartopp, 17 Ves.- 184 ; Justices Knight Brace and Turner, 
 
 and that of Lord Lyndhurst in in Coventry v. Chichester, 2 De G. 
 
 Durham y. Wharton, 3 CI. & Fin. J. & S. 336 ; 33 L. J. Ch. 361, 676. 
 
54 
 
 WILLS OF PERSONAL PROPEETY. 
 
 Term 
 "Property." 
 
 How the ordi- 
 nary significa- 
 tion of " Le- 
 gacy " may be 
 extended. 
 
 By reference 
 and construc- 
 tion. 
 
 make an addditional gift, as there was for his making the 
 original gift (m)." But this, it must be confessed, seems a 
 kind of lucus a non lucendo argument, since if a parent 
 is supposed to so ardently wish to benefit a stranger, a 
 fortiori he surely might at least be presumed to wish to 
 benefit his children. For this reason, the above rule as to 
 children seems altogether a very artificial one indeed (n). 
 
 " Property " is a term which may include either per- 
 sonalty or realty, according to the manifest intention of 
 the individual employing it (o) ; and in the Succession 
 Duty Act, 1853 (p), the word " Property " includes alike 
 realty and personalty. 
 
 Although a legacy is generally understood in the sense 
 ascribed to it in the definition with which we set out, and 
 that alone, yet the meaning of the term in its con- 
 struction, may be extended to property not technically 
 within its import, in order to effectuate a testator's inten- 
 tion (g). If then, it be clear to what used to be called a 
 Court of Construction, namely, one of those in the Chancery 
 Division of the present High Court of Justice, that the 
 phraseology employed in a Will fairly warrants a wider 
 interpretation of the word than would otherwise be allowed, 
 " legacy " may be so extended — according to Lord Mans- 
 field — as to include lands, as well as goods and monies (r). 
 
 Again, in another case, the same learned judge says — 
 " The word legacy, in its ordinary signification, is appUed 
 
 Difference be- 
 tween the 
 popular and 
 legal meaning 
 of "Property.' 
 
 (m.) See note {g), p. 53. 
 
 (») See tbe strong obserrations 
 of Lord Tburlow in the case of 
 Graves v. Salisbury, 1 Bro. C. C. 
 427. 
 
 (o) Hayes and Jarman on "Wills, 
 119 n. d. See also the Bankruptcy 
 Act, 1869, 32 & 33 Vict. c. 71, s. 4, 
 and Tyrone v. Waterford, 1 De G. 
 P. & J. 613 ; 29 L. J. Ch. 486. 
 
 The word " Property " is used in 
 the text in its popular and conven- 
 tional sense, that is, as denoting 
 something which belongs to a 
 
 person. The legal meaning of the 
 word, however, is his right to pos- 
 sess, use, or dispose of a thing at 
 his wlU and pleasure, to the ex- 
 clusion of everybody else ; or, as this 
 has been well expressed, '"Things 
 are regarded in law not as property, 
 but as the oijects of property." See 
 2 Black. Comm. ch. i. 
 
 (p) 16 & 17 Vict. c. 51. 
 
 (q) 2 Eop. Leg. 1486. 
 
 [r) Hope V. Taylor, 1 Burr. 269 ; 
 Judgment of Lord Mansfield. 
 
THE SUBJECT VIEWED GENERALLY. 55 
 
 to money, but it may signify a devise of land, and may 
 here comprehend the devise .... which the testator calls 
 a gift " (s). In short, the term may, by reference and 
 construction, describe real as ■well as personal estate. 
 
 "fhe word 'legacy,' however,'" says Lord Denman, Strict meaning 
 " must be admitted to have a direct reference to personalty, "Legacy " 
 and not to a devise of land ; " and then his Lordship refers 
 to several cases to show that the intention of the testator 
 must determine what is the meaning to be affixed to the 
 word (i), where its true and ordinary import is not observed. 
 
 In the civil and old English law, legare, from which, In the Roman 
 through its supine legatum, we derive legacy, was used English law. ' 
 indiscriminately in reference to both real and personal 
 estate, for we find Justinian speaking offundvmi legare (u)> 
 and Bracton of terram legare (x). 
 
 The person who bequeaths a legacy, as well as he who Testator, De- 
 devises realty, is called a testator, and the recipients '2lTate^^ 
 of testamentary gifts of realty or personalty are termed 
 respectively devisees, or legatees. The giver of realty jneaity and 
 by Will, is termed a DEVISOR, and the gift itself a DEVISE, Personalty 
 
 ■^ . defined. 
 
 from the old French word deviser, to speak, the Latin 
 equivalent of which is sermocinari. 
 
 By Real property. Real estate, or Realty, is signified 
 generally, lands, tenements or hereditaments ; by Per- 
 sonal property, Personal estate, or Personalty, with 
 which this treatise is mainly concerned, we mean such 
 property as consists of things temporary and movable, as 
 goods, chattels, money, and so forth. The sub-division of 
 personalty will be enumerated and commented upon in 
 the next chapter. 
 
 A Testament has been defined as a just and complete Testament and 
 declaration or sentence of a man's mind, or last expression 
 
 (s) £rady v. CuUtt, Doug. 39. wood, 6 A. & E. 175 ; 6 L. J., K. 
 
 See also the Judgment of Lord B. 96. 
 
 Kenyon in Bardacre v. Nash, 3 T. {u) Inst. 2. 20. 9. 
 
 E. 716, and Shep. Touch. 400. (x) Fo. 186. 
 
 if) Doe dem. Hickman v. Hasle- 
 
56 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Swinburne's 
 opinion. 
 
 Distinction be- 
 tween "Will" 
 and "Testa- 
 ment " abol- 
 ished by 
 statute. 
 
 Former mean- 
 ing of Testa- 
 ment, 
 
 of his will concerning what he would have to be done with 
 his estate after his death ; while a "Will is stated to be a 
 lawful act proceeding from a firm purpose or resolution, 
 either by word or writing, of that which any would have 
 done (y). 
 
 Swinburne makes a great deal of the words "just " and 
 " sentence " in the third paragraph of his work, and 
 quaintly remarks that — " It is written, that the will or 
 meaning of Testator is the Queene or Empresse of the 
 Testament." 
 
 The definitions however of " Testament " and " Will " 
 are, even according to the old notions on the subject, very 
 nearly synonymous, the only difference being, as Swin- 
 burne says, that in the definition of the former, what is 
 called jiista sententia, is in the latter exchanged for 
 legiti/ma dispositio. 
 
 The terms "Will" and "Testament" now mean the 
 same thing, the first section of the Wills Act of 1838, 
 1 Vict. c. 26, having declared that the former word shall 
 extend to and include a " Testament," codicil, and ap- 
 pointment by Will, or by writing in the nature of a Will in 
 exercise of a power of appointment ; still, it may not be 
 out of place to shortly note the old distinctions between 
 the words. 
 
 At one time the word " Testament," or the combined 
 form " Will and Testament " applied strictly to a bequest 
 of chattels, "Will" having been employed to signify a 
 devise of realty (z), although Littleton states that " a man 
 may devise by testaTnent his lands and tenement " (a). 
 
 (y) See Bac. Abr., tit. WUls and 
 Testaments; Swinburne's "Briefe 
 Treatise of Testaments and Last 
 Wills, "§§3,4. Both Justinian and 
 Sir Edward Coke agree that the 
 word " Testament" is derived from 
 testatio mentis, but Blackstone says 
 that it comes simply from the verb 
 testari, and that the other deriva- 
 
 tion is "an etymon which seems to 
 savour too much of the conceit ; " 
 also that "the definition of the old 
 Roman lawyers is much better than 
 their etymology." 2 Comm. 499. 
 
 (s) 2 Black. Comm. 373. 
 
 (a) Sect. 167, and Lord Coke 
 thereon. Ilia. 
 
THE SUBJECT VIEWED GENERALLY. 57 
 
 His celebrated commentator, Lord Coke, on the other 
 hand, remarks that " in law, most commonly ultima 
 voluntas in scriptis is used, where lands or tenements 
 are devised, and testavfientu/m, when it concerneth chat- 
 tels" (6). Blackstone, however, although distinguishing 
 between devises of land and bequests of chattels, occa- 
 sionally confuses the terms (c), as do some other writers, 
 so that we may infer that these two terms have not 
 always been carefully distinguished by the majority of 
 legal authors. 
 
 An old author of repute says that " A Testament taken Godolphin's 
 strictly according to the definition thereof, differeth from Testament" 
 a last Will, yet not as opposite thereto, but only as the 
 species differeth from the genus, for every Testament is a 
 last Will, but every last Will is not a Testament. A last 
 Will is a general word, and agrees with each several kinds 
 of last Wills or Testaments ; but a Testament, properly so 
 called, is only that kind of last Will wherein an executor 
 is named " (c?). 
 
 The distinction in question is, as before pointed out, T^^, Last 
 now of little importance, and is interesting only as a matter Testament now 
 of legal history : accordingly, throughout this work, the ™?*" ^'^^ ^"'^ 
 terms "Will," "Testament," or "Last Will and Testa- '^' 
 ment," will be used as synonymous terms, the word "Will" 
 including every species of testamentary instrument re- 
 ferred to. Blackstone also seems to have looked upon Blackstone 
 these terms as equivalent, since he says in one place that e^iJys tiie 
 " the appointment of an executor is essential to the *«™^ ^ 
 
 , . . equivalent. 
 
 making of a Will," by which he means a testament in its 
 strict sense. Other passages also occur in the Com- 
 mentaries of a similar character, as where the author 
 speaks of proving the Will, meaning thereby testament, 
 since no executor was or is required for a devise (e), 
 
 (6) Co. Litt. iMd. been altered to bequeath in later 
 
 (c) Thus, he says, "a man may editions. See Shep. Touch. 400. 
 
 devise the whole of his chattels'' (d) Godolph. Orph. Leg. 5. 
 
 (2 Comm. 493) ; but this word has (e) Went. Off. Ex r. 4, u. (e), 9. 
 
58 
 
 WILLS OF PEKSONAL PROPERTY. 
 
 Old meaning of 
 "Testament" 
 seen in phrase 
 cum testamento 
 annexo. 
 
 Devise and 
 Bequeath. 
 
 As affected by 
 the Statute of 
 Frauds. 
 
 All Wills now 
 on the same 
 footing. 
 
 One notable 
 distinction be- 
 , tween devises 
 and bequests. ■ 
 
 always allowed 
 in England. 
 
 Limited at 
 Common Law. 
 
 Devises before 
 and after the 
 Conquest. 
 
 although the nominating one forms no objection to the 
 instrument. 
 
 A relic of the old exclusive use of the word " testament," 
 is seen in the phrase " cwm, testamento annexo^' still used 
 in our law in reference to a Will of personalty with no 
 executor named therein ; vohintas being the Latin repre- 
 sentative of a Devise (/). But these unnecessary dis- 
 tinctions are now all happily abolished, and Testator and 
 Will are correlatives for all purposes. 
 
 Although " devise " and " bequeath " were formerly used 
 indiscriminately to denote the same act, yet, at the present 
 day, their respective technical significations are more pre- 
 cisely observed by lawyers, though of course either word 
 used in a Will or other testamentary document, would avail 
 to carry into effect the intention of the person employing it. 
 
 Between devises and bequests, as affected by the Statute 
 of Frauds {g), no distinction is made Qi). 
 
 All Wills are now, as regards their execution and attes- 
 tation, on the same footing (i). 
 
 There is, however, one point of difference between a 
 devise and a bequest, not unworthy of our attention, 
 namely that which is observable upon a consideration of 
 the history appertaining to each, for the features of the 
 two are in this respect dissimilar. 
 
 The power of bequeathing always existed in England (A), 
 although at Common Law, as we shall see more fully pre- 
 sently, it was nevertheless limited to a portion only of the 
 testator's property, except under certain circumstances. 
 
 Devises of realty, on the other hand, although allowed 
 here before the Norman Conquest, were not, for nearly five 
 centuries after that event, permitted except by particular 
 custom, or where the subject of the devise was a term of 
 years, which being a mere chattel interest, was simply 
 
 (/) Co. Litt. 322(1. 
 
 {g) 29 Car. IL, c. 3. 
 
 (h) Sp. Eq. Jur. C. C. § 523. 
 
 (i) 1 Vict. >:. 26, ss. 9, 10 ; ex- 
 
 cept those of soldiers, mariners, 
 &c., in actual service, ss. 11, 12. 
 (k) 2 Black. Com. 491. 
 
THE SUBJECT VIEWED GENERALLY. 59 
 
 equivalent to personalty (I). Nor could land be trans- 
 ferred except by solemn livery of seisin, matter of record, 
 or suflScient writing (m). 
 
 The power of devising lands and tenements after the Statutes of 
 Conquest, was, as remarked in a previous page, first con- concCTning 
 ferred by legislative enactments passed in the reign of devises. 
 Henry VIII. ; so that devises and bequests, when viewed 
 as matters of legal history, are found to stand upon 
 different bases (n). 
 
 An Executor or Executrix is the person, man or Executor. 
 woman, to whom is confided by a testator, by his written 
 appointment, express or implied, the carrying into effect 
 of his last Will and Testament (o). • 
 
 An ordinary ADMINISTRATOR or AdIUNISTRATRIX is the Administrator. 
 
 person, man or woman, to whom the Court of Probate 
 commits the management of the affairs of an intestate 
 person (p). 
 
 The great distinction between an executor and admini- Distinction be- 
 strator was very clearly stated by Lord Chief Justice anrMminis-'"^ 
 Abbott (afterwards Lord Tenterden), in the, case of faator. 
 Woolley V. Clark (q). " An administrator," said his lord- 
 ship, "derives his title wholly from the ecclesiastical 
 court (r). He has none until letters of administration 
 are granted, and the property of the deceased vests in 
 him only from the time of the grant. An executor, on 
 the other hand, derives his title from the Will itself, and 
 the property vests in him from the moment of the 
 testator's death." 
 
 A Testament or Will of personalty, to be a strictly Executor 
 perfect instrument, should always have an executor or 
 
 should be 
 
 (l) Id. 374 ; Co. Litt. 1116, 1 Cowp. 299. 
 
 Hargrave and Butler's note (1). (o) 2 Black. Com. 503. 
 
 (to) 32 H. VIII. c. 1 ; 34 H. VIII. (p) Id. 504. 
 
 c. 5 ; Hargrave and Butler's note, {^) 5 B. & Aid. 744. 
 
 supra. (r) The Court of Probate took 
 
 («) For an excellent account of the place of the Ecclesiastical and 
 devises, see the Judgment of Lord othbr Courts in matters testa- 
 Mansfield in Hogan v. Jachsmi, mentary in 1857. 
 
60 
 
 "WILLS OF PEESONAL PEOPEETY. 
 
 named in a 
 Will of person- 
 alty to make 
 it perfect. 
 
 Administrator 
 cum testamento 
 annexo. 
 
 Probate Divi- 
 sion of High 
 Court of 
 Justice. 
 
 Intestate. 
 
 Circumstances 
 ■whicli amount 
 to intestacy. 
 
 executors nominated therein; yet when a testamentaiy 
 instrument of this description names no executor at all, 
 or some person incapable of acting as such, or the 
 executor appointed has died without proving the Will, or 
 refuses to act, the law can supply the vacant or improperly 
 filled place by appointing an agent to carry out the 
 directions of the testator. The previously defective 
 instrument is then, by this means, as it were, clothed 
 with that character of completeness which the law 
 requires, and the duly appointed agent occupies a position 
 almost identical with that of an executor (g). 
 
 Such a person is called an ADMINISTRATOR CUM testa- 
 mento AN*rEXO, that is to say, to the instrument con- 
 ferring upon him his authority to act, is annexed the 
 defective Will for his guidance, and which requires to be 
 proved like any other will (q). 
 
 The tribunal to which our law has intrusted the power 
 of appointing an executor to a Will in which one is not 
 named is the Probate Division of the High Court of 
 Justice, which before the recent Judicature Acts (r) was 
 known as the Court of Probate. 
 
 An Intestate person, strictly speaking, is one who 
 dies without having made a disposition of his property 
 by Will. But a person also who does leave a testamen- 
 tary paper, may yet practically die intestate, as for 
 instance, if he has not executed it in the manner required 
 by law. Accordingly, where A. had a document drawn up 
 as his Will, but it was declared by the intended witnesses 
 thereof that he did not .sign it in their presence, the 
 Court of Probate held that the deceased died intestate (s). 
 
 In the highly important case of Hindmarsh v. Charl- 
 
 (q) 2 Black. Cora. 504; 1 Wms. 
 Exors. pt.l, bk. 5, ch. 3, sect. 1, p. 461. 
 
 (r) See 36 & 37 Vict. c. 66, s. 34 ; 
 38 & 39 Vict. c. 77, 3. 18. The 
 jurisdiction of the former Court of 
 Probate in matters peculiarly within 
 its cognizance, is by these Acts 
 
 transferred to the Probate Division 
 of the High Court of Justice. 
 
 (s) Eckersley v. Flatt, L. E, 1 P. 
 & D. 281 ; 36 L. J. P. & M. 7. 
 This is also in accordance with the 
 Civil Law ; Just. 3, 1 Introd. Dig. 
 38, 16, 1. 
 
THE SUBJECT VIEWED GENEEALLY. 61 
 
 ton (t), the testator signed what he probahly intended to 
 be his Will, but his signature was not attested in the 
 manner required by law (u) ; accordingly, the House of 
 Lords pronounced as for an intestacy. 
 
 In certain cases, the Probate Division of the High Court intestacywhere 
 may decree an intestacy, even where a complete Will exSSf * 
 is left by a deceased person ; as where the document 
 is so incoherently worded as to strongly indicate in- 
 sanity in the writer. The course adopted in such an 
 event is to grant administration to the person who would 
 have been entitled thereto had no Will existed, and to 
 order the paper to be deposited in the registry of the 
 Court (x). 
 
 We see then that a person who attempts to bequeath Effect of a Will 
 property, but fails to do so in accordance with the self to'dfe""^' 
 formalities which the law prescribes, dies virtually instate, 
 intestate ; and it may here be remarked that, if a man 
 makes a Will in which he declares himself to die 
 intestate, the paper will operate as a bequest of his 
 property to the persons designated by the Statute of 
 Distributions (y). 
 
 If no executors are named in a Will, or if those who Q««s* iites- 
 are nominated in a valid Will refuse to act, the testator 
 in such case is said to die quasi intestate, or a testa- 
 mentary intestacy is said to occur. It has been remarked 
 that this distinction has ceased to exist'in English law (z), 
 but Mr. Justice Williams retains the phrase in his work 
 on executors (a). 
 
 The right to act in the management of an intestate's Letters of ad- 
 
 . ,,.. , ,.,. ministration. 
 
 estate is conferred by issumg a document which is termed. 
 
 («) 8 H. L. Cas. 160, affirming Curt. 591. 
 
 the decision in Charlton y. Hirnd- (y) BrencMey v. Lynn, 2 Robert. 
 
 marsh, 1 Sw. & Tr. 433 ; 28 L. J. 145 ; Judgment of Dr. Lushington, 
 
 P. & M. 132. ibid. 
 
 (u) 1 Vict. c. 26, s. 9 ; 15 & 16 (z) Id. 
 
 Vict. 0. 24, s. 1. (a) 1 Wms. Exors., pt. 1, bk. 5, 
 
 (x) In the goods of Bowrget, 1 ch. 3, sect. 1, p. 461. 
 
62 
 
 WILLS OF PERSONAL PROPERTY. 
 
 'LetteiB." 
 
 'though inaccurately (6), Letters of Administration — already 
 referred to, and an administrator or administratrix is said 
 in familiar language, to take out, and the Probate 
 Division of the High Court of Justice to grant, adminis- 
 tration. " The parties who are eligible to become gi-antees 
 of letters of administration of a testator's general estate 
 are various, deriving their title or interest from various 
 sources" (c), and as remarked by Mr. G. Browne, the 
 personal disqualifications for the oflfice of administrator, 
 as for that of executor, are few (d). 
 
 The term " letters," as applied to a legal document, is 
 one of considerable antiquity, and indicates the foi-m early 
 given to many public and private written instruments, as 
 letters patent, &c., and the term epistola very frequently 
 occurs in old European law (e). " Spelman refers to 
 Cassiodorus and Marculfus to show that all deeds or 
 charters were, during and after the lower empire, called 
 epistolce." (/) Closely connected with this word, is the 
 term so frequently occurring in old English law, breve, 
 which " has been called a letter or epistle because it com- 
 menced in the same way as did the letters of the ancient 
 Romans — ' Rex justiciariis suis se salutem.' " (/) 
 
 Before these Letters of Administration are granted, the 
 
 personal property of the intestate is, by statute,^vested in 
 
 the Judge of the former Court of Probate, and now in the 
 
 Division of the President of the Probate Division of the High Couii of 
 Qi Ct J* 
 
 The effects of 
 an intestate 
 person vest in 
 the President 
 of the Probate 
 
 (J) Mi. George Browne points 
 out in bis treatise on Probate Prac- 
 tice that the statements iu this 
 document amount only to a mere 
 record that Letters of Administra- 
 tion have been granted, p. 163. 
 
 (c) Coote, Prob. Prac. The fol- 
 lowing are the main sources indi- 
 cated : — The Common Law ; 31 Ed. 
 3, Stat. 1, 0. 11 ; 21 Hen. 8, c. 5 ; 
 20 & 21 Yict. 0. 77, s. 73, all treat- 
 ing of the appointment of adminis- 
 
 trator ; 29 Cha. 2, c. 3, s. 25 ; 38 
 Geo. 3, c. 87, as to husband's right 
 to administer his wife's estate ; 38 
 G. 3, 0. 87 ; 20 & 21 Vict. u. 77, 
 a. 74 ; 21 & 22 Vict. c. 95, s. 18, 
 as to administration during admi- 
 nistrator or executor's absence 
 abroad. 
 
 (d) G. Browne, Prob. Prao. 164. 
 
 (e) Calvin, Lex Jurid. h. v. 
 
 (/) Burr, Law Gloss. ; " Letters.'' 
 
THE SUBJECT VIEWED GEKEKALLY. 63 
 
 Justice, just as it was in the Ordinary or Judge of the old 
 Ecclesiastical Court (g). 
 
 By the term " vested," as here used, is meant that the Meaning of 
 President of the Division of the High Court of Justice is "^^ ' 
 clothed with the possession of, and property in, the 
 intestate's effects, until he divests himself thereof by 
 granting the Letters of Administration. 
 
 As soon as the document, called Letters of Administra- Effect of 
 tion, is issued, the property in the effects of the intestate Letters rf Ad- 
 is transferred from the President of the Probate Division ministration as 
 of the High Court of Justice, and at once becomes vested vesting of the 
 in the person to whom the administration is granted. property. 
 
 Where, however, the deceased leaves a Will and an Inwtomtlie 
 executor thereto, the property vests in the latter imme- testatorV 
 
 diately after the testator's death. ™d at what 
 
 By the Court of Probate Act 1857 Qi), the testamentary „ " ^^ p^^ 
 jurisdiction possessed by the Ecclesiastical and other bate Act, 1857, 
 
 /^i j-i r j-i. JxJ'ii, sind Judicature 
 
 Courts was taken away irom them and vested m the ^^jg i873and 
 Sovereign, in whose name it is .now exercised in West- 1875. 
 minster Hall by a. single judge, formerly styled the 
 Judge Ordinary of the Court of Probate, but who is 
 henceforth to be designated — so far as concerns his juris- 
 diction in probate matters — the President of the Probate 
 Division of the High Court of Justice (h). 
 
 By the above statute of 1857, the Judge Ordinary was ^^^^it'^f^^ 
 empowered to request the assistance of any one or more the President 
 
 n ,T_ n T T 1 • 1 1 • i-j. of tlie Probate 
 
 01 the Common Law Judges in causes where he might Division of the 
 deem their aid requisite or desirable, and this power is 3- c. J. 
 not taken away by the new Judicature Acts. 
 
 From any final or interlocutory decree of the Court of pro^^^e 
 Probate, an appeal by leave of the Judge lay to the Division. 
 
 The correct 
 (g) 21 & 22 Vict. o. 95, s. 19 ; yet as stated by Sir J. Hannen, the P^ff™^*^ ® °* 
 Court of Probate Act, 1858. correct title of this section of the q^^^ ^f ppQ. 
 
 (h) 20 & 21 Vict. c. 77. It High Court is the "Probate, Di- fcateis— 
 may be' stated that although we voroe, and Admiralty Division;" "The Probate, 
 here, and shall for the future in but no document will be invalid on Divorce, and 
 this book, shortly speak of the account of not bearing this full p?™^^^*^^ ^j^g 
 Probate Division of the H. C. J., title of the Division. Nov. 9, 1875. ^.^ ^^^^ ^j 
 
 Justice." 
 
u 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Meaning of 
 
 "word 
 
 " Ordinary " 
 
 as applied to 
 
 a judge. 
 
 No executor 
 required for a 
 Will of realty. 
 
 SuchaWillmay 
 be admitted, 
 hut is not en- 
 titled, to 
 probate. 
 
 Benunciation 
 by an executor 
 of Ms office 
 does not 
 deprive a Will 
 of its cha- 
 racter as such. 
 
 Old opinion as 
 to the necessity 
 of an executor 
 ■for a Will of 
 personalty. 
 
 Present state of 
 the law on this 
 point. 
 
 House of LordSj and for the present at any rate, the 
 practice will remain the same in appeals from the Probate 
 Division of the High Court of Justice. (See note B in App.) 
 
 The term " Ordinary" as applied to a Judge signifies one 
 having an ordinary regular jurisdiction as of course and 
 common right, in opposition to persons who are extra- 
 ordinarily appointed (i). It is now no longer in use since 
 the Judicature Acts. 
 
 No executor is required for a Will of real property, that 
 is of lands, tenements and hereditaments, but if one be 
 named in such an instrument, the Probate Division of the 
 High Court of Justice may permit it to be proved like a 
 Will of personalty, even though the executor renounce 
 his rights under it (k). 
 
 But a Will dealing with realty only, is not entitled to 
 probate, although the executor named in it is directed to 
 convert the property into personalty (I). 
 
 If the nomination of an executor make a paper a Will, 
 the fact of the executor's, subsequent renunciation cannot 
 take away the effect of the nomination (m). 
 
 It was once thought that the appointment of an executor 
 was so essential to the validity of a Will of personalty, that 
 any instrument, deficient in this respect, was, in conse- 
 quence, null and void (n). 
 
 Opinion on this subject has, however, changed, and we 
 find it judicially indicated by a high authority, that a 
 Will of personalty really needs no executor to give it 
 legal validity (o), although conversely, " the bare nomina- 
 tion of an executor, without giving any legacy, or appoint- 
 
 (i) Co. Litt. Siia; 3 Burn. Eco. 
 L. 39. 
 
 (fc) In the goods of Jordan, L. E. 
 1 P. & D. 555 ; 37 L. J., P. & M. 
 22. 
 
 (Z) In the goods of Burden, L. E. 
 1 P. & M. 325 ; O'bwyer v. Geare, 
 1 Sw. & Tr. 465 ; 29 L. J., P. &M. 
 47, a case of appointment by Will. 
 
 (m) In the goods of Jordan, supra; 
 Per Sir J. P. WUde, J. 0., now Lord 
 Penzance. 
 
 (») 1 Wms. Exors., pt. 1, bk. i. 
 ch. 2, 1. 
 
 (o) Judgment of Sir H. J. Fust 
 in Eenfrey v. Henfre,y,2 Curt. 468 ; 
 affirmed by the Privy Council, 4 
 Moo. P. C. 
 
THE SUBJECT VIKWED GENERALLY. 65 
 
 ing anything to be done by him, is sufiScient to make a 
 Will, and as a Will it must be proved (p)." 
 
 This doctrine as to a Will of personalty not requiring in Old "'ie* of t'le 
 
 ■ , „ 1 . , 1 n 1 Court of Clian- 
 
 point 01 law an executor, seems to have been long ago eery in accord- 
 recognized by the Court of Chancery, if we may iudge ance witii pre- 
 
 p PT-iipii- ■ 1 ■ •' •> " sent opinion. 
 
 from a case of which the following is the entire report : — 
 " The testator made his Will, but named no executor. The 
 Court of Chancery declared the Will to be a good Will in 
 Equity (q)." ~ 
 
 In Henfrey v. Henfrey, Sii- H. J. Fust said that he had Sir H. J. Fast 
 always understood that the appointment of executors in a Henfrey. 
 Will of personalty was a gift of such property to them ; 
 accordingly, if a testator, havi/ng no next of kin, bequeath 
 the whole of his effects without mentioning any legatees, 
 but nominatiag A. his executor, all will go to A., and of 
 course there is no need of any other executor under such 
 circumstances. (See, however, 11 G. 4 & 1 W. 4, c. 40.) 
 
 But although it is quite true that the strictness of the A Will of per- 
 old rule on this subject has been very much relaxed, if not an executor is 
 entirely disregarded, yet it is nevertheless also true that iio^eTer a de- 
 
 . TTT-ii f 1 1 • 1 • fectiTe mstru- 
 
 an ordinary Will of personalty which names no executor is ment as a Will. 
 an irregular instrument as a Will, and, as we have seen, its 
 terms can only be effectuated under the authority of the 
 law, through the medium of the Probate Division of the 
 High Court of Justice. 
 
 The term Legacy, as previously stated, is derived from t'egacy is 
 the Eoman Civil Law. If, however, we examine and civil Law. 
 compare the definition of a Legacy as there given (r) with 
 that which it bears in our law, we shall see that this word, 
 in the former system of jurisprudence, does not convey the 
 same idea, or one equivalent to that, furnished by the term 
 as used in the latter. 
 
 A Legacy, as defined in the Institutes of Justinian, is a Definition of 
 
 species of donation left by a deceased person to be executed civii Law. 
 
 by his heir (r). 
 
 {p) 1 Wms. Exors., pt. 1, bk. 3, (q) Wyrall v. Rail, 2 Eep. in 
 
 Introduo. 227, Chan. 59 (1615—1712). 
 
 (r) " Legatum est donatio quae- 
 
66 
 
 WILLS OF PERSONAL PROPERTY. 
 
 The word Heir 
 in Civil and 
 English Law. 
 
 In the Civil 
 Law. 
 
 HceredUcts. 
 
 Succession in 
 the Civil Law. 
 
 ^onorwm pos~ 
 
 Usucapio. 
 
 Prescription. 
 
 Both terms 
 included in 
 Prescription. 
 
 Only one 
 person can be 
 heir in English 
 Law. 
 
 Three classes 
 of heirs in 
 the Civil Law. 
 
 The feature most observable here, is the use of the word 
 heir, the meaning of which in the Civil is widely different 
 from that which it has in English Law. 
 
 The heir of the Civil Law was he who possessed the 
 hareditas, and this was nothing else than the right of 
 succession to the whole of a deceased person's estate, real 
 and personal (s). Succession was (1) by testamentary ap- 
 pointment, (2) by law when the deceased died intestate, 
 or (3) by a judicial decree of the praetor which gave the 
 bonorum possessio, or equitable ownership of the pro- 
 perty, without giving the domini/wm or full ownership 
 thereof This might have been subsequently acquired by 
 usucapio — usu rem, capere — that is, by right founded on 
 continuance of possession, where the title to the property 
 was a good one (t). Usucapion, however, was not quite 
 identical with prescription, inasmuch as the former had 
 reference to corporeal or movable things, and the latter 
 to those of an incorporeal or immovable character. Jus- 
 tinian abolished all other and previous distinctions between 
 these terms (u), and prescription in his collection includes 
 usucapion (x). 
 
 In the feudal system of jurisprudence, there is but one 
 person who can be heir, and he must be related in blood 
 to his ancestor, whose realty alone he can take ; but in the 
 Civil Law there are three classes of heirs enumerated : 
 (1) Hceredes necessarii, or necessary heirs, who were 
 slaves freed by their masters, and who were forced to 
 accept his appoiatment of them as heirs ; (2) Sui et 
 necessarii, or family heirs, those who were in the testator's 
 power (y) at the time of his death. They were called sui 
 
 dam a deftmcto rellcta, ab hserede 
 prsestanda." — Just. 2, 20, 1. 
 
 (s) " Hsereditas nlHl aliud quam 
 successio in universum jus quod 
 defunotus habuerit." — Dig. 50, 17, 
 62. Hcereditas also signified the 
 estate itself, the inheritance. 
 
 (t) See Just. 2, 6, De Usucapio 
 
 nibus, &o., and Mr. Sandar's note 
 to the title. 
 
 (u) Code, 7, 31, 1. 
 
 (x) Inst. 2, 9, 5, "... Tel usu- 
 capionem aut longe temporis prae- 
 scriptionem. " 
 
 {y) See the chapter on the Patria 
 Postestas in Maine's Ancient Law. 
 
THE SUBJECT VIEWED GENERALLY. 67 
 
 because they were so situated, necessarii because, like 
 those first named, they were bound, whether willing or 
 unwilling, to be the heirs of the testator or intestate ; (3) 
 Extranei, or strangers, who were neither slaves nor 
 children of the deceased, and these were free to accept 
 or reject the inheritance at their pleasure (z). 
 
 In the law of England and Scotland, the word heir is Seir in English 
 used only to denote a person to whom lands, tenements, and 
 hereditaments, by the act of God and right of blood, do 
 descend of some estate of inheritance (a). In our law 
 personalty cannot be said to descend, nor can the word 
 heir be used otherwise than in connection with real 
 property. A person, therefore, cannot be an heir to No heir to 
 goods and chattels (6), although he may be a sort of chattels in 
 donee in remainder of such things : that is, he may have ^"g^^^h law. 
 an expectancy in them on the decease of some other 
 person holding them for life (c). 
 
 It may be remarked, though more as a matter of Teohnicaimean- 
 
 T • 1 /. 1 1 • ingof "succes- 
 
 literary interest than of legal importance, that tbe ac- sion " in 
 quisition of* any kind of property by Will cannot, in our English law. 
 Common Law, correctly be termed a succession thereto, 
 because with us this word is equivalent to descent, and 
 denotes the coming of one person into another's place, 
 and also as a term of law, connotes or implies that he 
 does so as of course and right. Whereas he who acquires 
 property by Will does so wholly by the direction and 
 pleasure of a testator. Indeed, as to real property, so far 
 
 («) Inst. 2, 19, 5. preceded or n&t preceded by a prior 
 
 (a) Co. Litt. 7 5. Request, or limited on a certain or 
 
 (6) Id. 8 a. Hseres dicitur ab an uncertain event, is an executory 
 
 hsereditate, quia hsereditas sibi bequest, and falls under the rules 
 
 hseret ; the heir is so called from by which that mode of limitation, 
 
 hBreditas, because tbe inheritance is regulated. "^ — Fearne, Cont. Bern. 
 
 adheres to him, 1,6. 401 «. The term "donee in re- 
 
 (c) " In personal property . . . mainder," however, in reference to 
 
 there cannot be a remai/nder in the personalty, is of frequent occur- 
 
 strict sense of that word ; and rence,, probably for want of a better 
 
 therefore every future bequest of one, 
 
 personal property, whether it be 
 
 F 2 
 
68 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Purchaser. 
 
 "Descent "and 
 "succession" 
 equiyalent in 
 EngUsh law. 
 
 Descent of an 
 estate before 
 1833. 
 
 Present mean- 
 ing of "de- 
 scent. " 
 
 " Succession " 
 cannot strictly 
 be applied to 
 the acquisition 
 of chattels 
 
 is the law from considering a devisee as a successor, that 
 his technical designation — even though he might, but 
 for the devise, have succeeded as heir to the property 
 left him — is that of 'purchaser, which word, in its legal 
 sense, generally signifies a person who obtains real pro- 
 perty in any other manner than by descent (d). 
 
 This latter word, which is a more common term than 
 succession, would be included in the Civil Law under that 
 of Successio ab Intestato, but with us it -is a feudal term, 
 and has reference only to our kind of succession, namely 
 by law, to realty, or what the law regards as such. In 
 other words, an estate is said to descend where it is cast 
 by the law upon the person entitled to it. 
 
 Before 1833, in England, the descent of an estate 
 meant only its transmission downwards, and the hereditary 
 succession thereto, or the title by which a man acquii-ed the 
 property by right of representation, was through the actual 
 coming down of such estate to him by law. But the legis- 
 lature has thought fit to vary this definition of the word 
 in a very material manner, thereby appearing to confound 
 the former logical relation between "heir" and "ancestor." 
 "Descent" now means " the title to inherit land by reason of 
 consanguinity, as well where the heir shall be an ancestor 
 or collateral relation, as where he shall be a child or other 
 issue " (e). Such being the case, a man's father may be both 
 his ancestor and heir-apparent, and a son, it would seem, 
 may now become his father's ancestor, under certain circum- 
 stances, qua the property descending from him to his father. 
 
 The word succession then, in strictness, is not applicable 
 at Common Law to the acquisition in any way of chattels 
 personal, for as Blackstone says, the law looks upon these 
 
 (li) 3 & 4 W. 4, c. 106, s. 1 ; 
 amended by 22 & 23 Vict. c. 35, §§ 19 
 and 20. " Purchaser " applies also 
 to one who acquires realty by escheat, 
 pa/rtition, or enclosure. See as to 
 these words, 2 Black. Com. 72, 73 ; 
 Wms. R. P. chap. 4 ; and concern- 
 
 ing descent, Co. Litt. 237 6. 
 
 (6) 3 & 4 "W. 4, c. 106, s. 1; 
 and see Wms. E.- P. ch. 4, Rule 5. 
 Succession ab intestato in the Civil 
 Law was either in the descending, 
 ascending, or collateral line. Nov. 
 118, prsEf. 
 
THE SUBJECT VIEWED GENERAI,LY. 69 
 
 as of too low and perishable a nature to be limited to 
 heirs [who alone can take realty by descent], or such 
 successors as are equivalent to heirs (/). 
 
 Statute law has, however, considerably modified the Meaning of 
 technical signification of the term "succession," and now, "^^^'^° 
 by 16 & 17 Vict. c. 51, s. 2, known as the Succession Duty statute. 
 Act, 1854, 
 
 "Every past or future disposition of property, by "Succession" 
 reason whereof any person has or shall become beneficially 'd^osUumm 
 
 entitled to any property, or the income thereof, upon the devolutim of 
 death of any person dying after the commencement of the any kind. 
 Act .... and every devolution by law of any beneficial 
 interest in property or the income thereof. ... to any other 
 person in possession or expectancy, shall be deemed .... by 
 reason of such disposition or devolution a ' succession ; ' 
 and the term 'successor' shall denote the person so en- "Successor" 
 titled; and the term 'predecessor' shall denote the settlor, decessor" 
 disponer, testator, obligor, ancestor, or other person, from defined, 
 whom the successor's interest is or shall be derived." 
 
 By sect. 1, the term "property" alone, shall include "Property" 
 realty and personalty, and the term " succession " shall 
 denote any property chargeable with duty under the Act. 
 
 " Successor " is thus made not only the correlative of CorrelatiTcs of 
 "predecessor," but also of "settlor," "disponer," "testator,'' 
 " obligor," " ancestor " (g), or any other person from whom 
 the successor may derive his interest, and now, at any rate 
 for the purposes of the Act in question, the word "succes- 
 sion " may be said to possess a signification equivalent to 
 that which it has in the Civil Law — the means by which an 
 estate of any kind, real or personal, is acquired. 
 
 (/) 2 Comm. 431. Lord Coke cessor and prcedecessor. For ante- Derivation of 
 
 speaks of "heire or successor, " as censor is applied to a natural person "Ancestor." 
 
 though the two terms were synony- . . . but jrroedecessor is applied to a 
 
 mous. Co. Litt. 325 a. l)odycorporate,"&c.— Co.Litt. 786. 
 
 (g) "Ancestor, a term used in con- "Ancestor" and "heir" are still 
 
 nection with realty, is derived of the in law the correlatives of each other 
 
 Latin word antecessor, and in law as before, although other terms are 
 
 there is a difference between ante- madethecorrelativesof "successor." 
 
70 
 
 WILLS OP PERSONAL PEOPEETY. 
 
 Present 
 applicability 
 of word "sue 
 cession." 
 
 Hasres f actus 
 an improper 
 term in 
 Englisk law. 
 
 Legatees and 
 devisees com- 
 prehended in 
 the Civil Law 
 under the term 
 Legatarius. 
 
 Distinction 
 between heir 
 and legatary. 
 
 Maxim of 
 English law. 
 
 Heir appointed 
 in the Civil 
 Law. 
 
 Second maxim 
 of English law. 
 
 Other modes 
 of describing 
 an ?idr in 
 our law. 
 
 We may, therefore, assume that, at the present day, the 
 term "succession" can, without impropriety, be applied 
 generally to every acquisition of property of all kinds, 
 under any circumstances. 
 
 Although a person taking realty under a Will has been 
 sometimes styled hceres factus, hceres natus, and heir by 
 devise, yet in English law his proper designation is devisee. 
 
 In the Civil Law, such a person was called, generally, 
 legatarms, just as was he who acquired personalty, be- 
 cause the Civil Law makes no distinction between real 
 and personal property in regard to testamentary disposi- 
 tions thereof, but declares that all things, whether existing 
 now or at some future time, and whether corporeal or 
 incorporeal, may alike form the subject of the gift to 
 which it applies the single term Legacy (/i). 
 
 An heir and a legatary differed in this respect — the 
 former took upon himself an office or duty, the latter did 
 not, nor could he take his legacy without the consent of 
 the heir. 
 
 It is a well-known maxim of English law, that God 
 alone, not man, can make an heir (i), so that a devisee or 
 legatee cannot be such, but must be included under the 
 general and comprehensive term ASSIGN, which is applic- 
 able alike to them, and to all other persons who acquire 
 property otherwise than by right of blood and inheritance 
 (k). But in the Civil law, he could be either appointed 
 by a testator himself, or if not by him, then by the law. 
 
 There is another maxim of English law which says that, 
 No one can be the heir of a living person (I) ; and again 
 we are told that an heir is another self, and a son part of 
 
 (h) Just. 2, 20 ; 4, 7. Justinian 
 abolished the four kinds of legacies 
 which at one time existed in the 
 Koman Law, and reduced them to 
 one Mud ; Inst. 2, 20 ; 2, 9. The 
 verb legare, or one of its inflexions, 
 is always employed in the Civil Law 
 to denote tlit act of maldng any testa- 
 
 mentary gift of what nature soever. 
 
 (i) " Solus Deus h^redem facere 
 potest, nonhomo : " Co. Litt. 7 b ; 
 191 a ; and Mr. Butler's note, pt. 6, 
 es. 3, 4, 5. 
 
 (k) Wms. R. P. 61. 
 
 {I) " Nemo est hajres viventis." 
 Ca Litt. 8 b, 22 b. 
 
THE SUBJECT VIEWED GENERALLY. 71 
 
 the father (to) ; also that an heir is the same person with 
 his ancestor (n) ; and lastly, that an heir is a part of the 
 ancestor (o). From these maxims it will be still more 
 clearly perceived the difference between an heir in the 
 Civil, and in the English or feudal system of jurisprudence, 
 since in the former, he was usually instituted by a testator 
 during his life-time, whereas in the latter, God alone, 
 and after the ancestor's death, makes the heir, not man (p). 
 
 In the Roman or older Civil law, a father was boi;nd By the Civil 
 either to institute his son his heir, or disinherit him by i^^^j ^ j^'^g 
 name, but according to the Institutes, he might virtually his son one- 
 disinherit his son, to the extent of three-fourths of the property, 
 estate, including what was bequeathed, by leaving him 
 some insignificant portion of his property (g). This circum- 
 stance is thought by some to have given rise to the vulgar 
 English notion, that a man must leave his son a shilling by 
 his Will, if he would deprive him of the right to succeed as 
 heir to his inheritance. 
 
 The Civil Law then, permitted a man to appoint his Heir appointed, 
 
 , . , . 11, 1 , in the Civil 
 
 heir or heirs, and also to any number, arrangements ia,w;semam 
 
 unknown to the law of England, if we employ the word ^^^glisli. 
 heir in its feudal sense. 
 
 Where a Roman died intestate, or with an invalid Will, ^«™ '»'^'"«» 
 
 •II- 1 ■ mi 1 • ^""^ "^ *° 
 
 tlie law appointed him an heir. Ihe person on whom it intestacy. 
 cast the inheritance of the deceased was the suus hceres, 
 and such a transmission of the property was termed suc- 
 cessio ab intestato (r). 
 
 "» 
 
 (m) Herbert's case, 3 Co. Eep. remotus." — Co. Litt. 242 S. "There Hceres propin- 
 
 12 6. * is also mention made of another quus, hares 
 
 (n) Co. Litt. 22. " For the an- heire, viz. H^res astrarius, so called «'«'''«™. '^^^ 
 
 cestor during his life beareth in his from asire, that is, an hearth of a tj.^^^ 
 
 body (in judgment of law) all Ms house ; because the ancestor by 
 
 heires." conveyance hath set his heire ap- 
 
 (o) Id., ibid. parent and his family in a house, 
 
 (p) For a full examination of &c., in his life-time. "—Co. Litt. 
 
 these maxims see Dr. Broom's L. M. 8 h. 
 
 Note. — " In ancient bookes the (?) Inst. Tit. 18. 
 
 eldest Sonne is called hoeres propin- (r) Inst. 3,1. 
 
 qvAiS, and the youngest sonne hceres 
 
72 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Hceres testa- 
 tnentariua and 
 ah intestato. 
 
 Definition of 
 
 legatum 
 
 examined. 
 
 Hares testa- 
 
 similar to Eng- 
 lish executor. 
 
 Heir or heirs 
 to any number 
 could be ap- 
 pointed in the 
 Civil Law. 
 
 Institution 
 of heirs. 
 
 The heir appointed by Will was called haeres testamen- 
 tarms ; the heir appointed by law, hcsres ah intestato. 
 
 Glancing at the definition of Legatum in the Civil Law, 
 we see that the Will of a Roman testator or legator was to 
 be carried into effect {proistanda) by his heir, who was 
 bound to permit the legatary to take his legacy, and was 
 liable to an action in case of any unlawful detention on 
 his part of the thing bequeathed. 
 
 It is evident, therefore, that the office of hoeres testamen- 
 tarius or testamentary heir in the Civil Law, was at least 
 analogous to that of Executor in ours, for the duty of the 
 latter consists in carrying into effect the written directions 
 of the testator who appoints him. The word " executor" was 
 stigmatized by Lord Chancellor Hardwicke as a barbarous 
 tei-m unknown to the law (s), and although this is true, 
 so far as regards its not being known in the Civil Law, 
 yet it is certainly closely allied to words employed by 
 classical writers of high authority, and which indicate the 
 doing or carrying out anything. But be this as it may, 
 the word, fully expressive in itself, is now firmly established 
 with us, and no doubt well describes the person, whose 
 position closely corresponds to that of the hceres testa/mevr 
 tarius of the Civil Law. 
 
 From the Institutes of Justinian we learn that in the 
 Civil Law, one heir or any number in infinitum could be 
 appointed by testament {t). This institution of a testa- 
 mentary heir or heirs, formed the very essence of a Roman 
 Will. " By ' institution,' is meant the declaration who is 
 to be heir, that is, who is to carry on the legal existence, 
 the persona, of the testator. And as, unless his existence 
 were continued, there could be no thing or person from 
 whom the testamentary dispositions could derive any force, 
 or be of any efficacy, the institution was the all-important 
 part of the testament (u)." 
 
 From what has just been stated, we perceive the origin 
 
 (s) Androvin v. PoilUanc, 3 Atk. usq^ue in infinitum, quot quis hs- 
 SOO. redes velit, facere licet."— 2, 14, 4. 
 
 (<) " Et unum hominem et plures, (u) Sandars' Just. 2, 14, Tit. note. 
 
THE SUBJECT VIEWED GENERALLY. 73 
 
 of two features in our own testamentary law, namely, 
 the notion now exploded, that an executor is absolutely 
 necessary to the validity of a Will of personalty ; also the 
 devolution of the same species of property by our Statutes 
 of Distribution (a;), which are founded upon the rules of 
 the Civil Law on this subject {y). 
 
 The stringency of the previously cited maxims of English Maxims of 
 
 T • ii 1 „, • » 1 o ■ ,. English Law 
 
 -Law concerning the word heir, has oiten, in cases oi respecting an 
 Wills, been relaxed in favour of its popular, as against its fl^"^y'''™tu ■ 
 technical signification, as where a testator has devised operation. 
 property " to the heir " of a living person, meaning thereby 
 some one also in being and ascertained. In such a case, 
 if it can be fairly gathered from his Will that the testator 
 meant by this use of the word " heir," the individual who, 
 in common parlance, is styled heir apparent or heir pre- 
 sumptive, the law will fulfil the intentions of the testator (z), 
 the reason being that in the construction of Wills, the first 
 things to be regarded are a testator's meaning and wishes. 
 
 An HEIR APPARENT, SO Called, is one whose right of in- Heir apparent. 
 
 heritance is indefeasible should he outlive his ancestor, as 
 the eldest son or his issue ; an HEIR PRESUMPTIVE is one Heir pre- 
 who if the ancestor should die immediately, would under ^'^'"'^ "^' 
 existing circumstances be heir, but whose right to inherit 
 may be defeated by the contingency of some nearer heir 
 being born. Thus, an only daughter is heiress presump- 
 tive to her father (a), but should he have a son, the birth 
 of the latter defeats the daughter's right ; also the second 
 son of the sovereign, or of any other person, is heir presump- 
 
 (a) 22 & 23 C. 2, u. 10 ; 1 J. 2, Olei-Tce, Hob. 29 (lY24), and the 
 
 c. 17, s. 7 ; 29 C. 2, c. 3, s. 25. The more modern ones of In re Jmffer- 
 
 first of these is frequently called son's Trusts, L. R. 2 Eq. 276 ; 35 
 
 the Statute of Distributions. L. J. Ch. 622 ; In re Newton's 
 
 (y) Me Boss's Trusts, L. R. 13 Trusts, L. R. 4 Eq. 171 ; 37 L. J. 
 
 Eq. 286 ; 41 L. J. Ch. 130 ; Jiidg- Ch. 23 ; Judgments of "Wood, V.C. 
 
 ment of Wickens, V.C. See Feame, Cont. Rem., sect. 6 (1), 
 
 (z) See as illustrative cases, Bur- Butler's note ; Broom's Leg. Max. , 
 
 chett V. Durdant, 2 Ventris, 311 sub Nemo est hcures viventis. 
 (1701) ; Darhison v. Beaumont, 1 (a) 2 Black. Com. 208. 
 
 P. Vms. 229 (1713) ; Counden v. 
 
74 
 
 WILLS OF PERSONAL PIIOPERTY. 
 
 Other ejcpres- 
 sions in our 
 law involving 
 the word 
 "heir." 
 
 Heii-at-law. 
 
 Observations 
 on the above 
 terms. 
 
 The meaning 
 of "at" in 
 certain legal 
 
 tive respectively to the throne or the property until his 
 elder brother has a son, when his hopes of succession are 
 , destroyed by the son's birth, of course supposing the latter 
 to Hve. 
 
 In addition to the terms heir by devise — which may 
 be discarded altogether — heir apparent and heir pre- 
 sumptive, we have in our law, persons called respectively 
 the heir special and heir by custom. The first signifies one 
 who claims to succeed to an entailed inheritance, and the 
 second, one who succeeds according to some custom at 
 variance with the Common Law, as in the case of estates 
 subject to the tenure of Gavelkind, usual in the county of 
 Kent, and which descends to all the sons equally, a course of 
 devolution at one time the most usual all over England (6) ; 
 or, again, in Borough-English lands, which are inherited 
 by the youngest son alone (c). Lastly, we have the heir 
 general, or as he is more commonly called, heir-at-law (d), 
 that is, the person who, after the death of his ancestor 
 intestate, has a right, on account of proximity of blood, to 
 aU his lands, tenements, and hereditaments over which he 
 possessed unfettered control. 
 
 But with the exception of the improperly termed heir 
 by devise, all the other expressions enumerated, do not 
 
 "In "law. 
 
 The word 
 "attorney" as 
 meaning a legal 
 practitioner, 
 now abolished. 
 
 (b) 2 Black. Comm. 85. 
 
 (c) Id. 83. 
 
 (d) The preposition "at," as 
 here used, signifies according to, by, 
 or in, just as in the phrase "At 
 Common Law," "Actional Law," 
 the term "Barrister ai Law," and 
 so forth. It is equivalent to the 
 Latin ad. Thus, the term Serviens 
 AD Legem is Anglicized into Ser- 
 jeant at Law. As regards the word 
 Attorney, it is said that a man may 
 be either an Attorney at Law or in 
 Law, the former meaning an or- 
 dinary legal practitioner, the latter 
 one who acts generally for another, 
 in any capacity of agency, or who 
 receives a power of attorney for that 
 
 purpose, in which case he becomes 
 an attorney in law, which is equi- 
 valent here to in fact, from the cir- 
 cumstance of being appointed by 
 the factum, or deed. — Story on 
 Agency, §§ 24 & 25. Again, we 
 speak of "malice in fact" and 
 "malice in law," the former mean- 
 ing the word in its familiar sense 
 of ill-will, the latter in its legal 
 sense, indicating the infliction of a 
 wrong without just cause or excuse. 
 With regard to the term Attorney, 
 it may be remarked that it was 
 abolished by the Judicature Act of 
 1873, s. 87, all legal practitioners, 
 except barristers, being now called 
 Solicitors. 
 
THE SUBJECT VIEWED GENERALLY. 75 
 
 express community of meaning with the word " heir " in 
 the Roman Civil Law, and no combination of words with 
 the term will alter its strict signification in our own, 
 which we venture again to repeat — singularly enough, 
 partly in the language of the Civil Law — namely, he who, 
 ex justis nuptiis procreatus (e), i.e., begotten during mar- 
 riage, succeeds to his ancestor's lands, &c., by the act of 
 God, right of blood, and operation of law. 
 
 The before-mentioned expressions, though perhaps Expressions 
 strictly and technically speaking, incorrect, yet are com- renr' k'^^ 
 monly employed by the general consent of the legal pro- tether con- 
 fession to indicate respectively the position of the persons 
 to whom they are severally applicable, and it would not 
 be easy to frame better designations without having resort 
 to circumlocution. 
 
 A Will of any kind of property in the Civil Law was A Will in the 
 constituted by the mere appointment of a testamentary 
 heir or heirs, according to certain prescribed formalities (/), 
 and those persons were considered at the testator's death, 
 universal successors to all the property, rights and obliga- 
 tions of the deceased, whether acquired before or after the 
 making of his Will. 
 
 The position of the testamentary heir, although, as To what extent 
 
 Civil Law cor- 
 respoitds to an 
 
 (e) Co. Litt. 7S. " Quos ex justis condition to make it legitimate, executor in 
 
 nuptiis procieaverimus." — Just. that it shall be 6or?i after wedlock. English Law. 
 
 Inst. 1, Tit. 9. In the Institutes Children also, who are born so long Who are illegi- 
 
 Nuptice and Matrimonmn are used after the death of a husband that timate children 
 
 synonymously, i. 9, 1. ' by the usual course of gestation in -English Law. 
 
 Note. —An illegitimate child, or they could not be begotten by him, 
 
 bastard, by our laws, is one that is and those, bom in cases where the 
 
 not only begotten, but born, out of husband is out of the country for 
 
 lawful matrimony. The Civil and above nine months, are likewise 
 
 Canon laws, followed in this respect deemed by our law illegitimate 
 
 in Scotland, do not permit a child children. 1 Black. Com. i5i, 5, 6, 
 
 to remain a bastard, if the parents and see as to the effect of marriage Marriage with 
 
 afterwards intermariy ; and herein with a deceased wife's sister, 5 & 6 ^ deceased 
 
 differ materially from our law, W. 4, c. 54, and the case of Srook ™®'^ ^'^*'^'^- 
 
 which though not so strict as to v. BrooTc, 9 H. L. Cas. 193. 
 require that the child shall be 6e- (/) Just. Inst. 2, 10, Tit. De 
 
 gotten, yet mak« it an indispensable Testamentis Ordinandis. 
 
76 
 
 WILLS OF PERSONAL PROPERTY. 
 
 No legacy in 
 Civil Law with- 
 out an heir. 
 
 "Legacy" not 
 applied to a 
 direct bequest 
 as in our law. 
 
 Treatment of 
 subject post- 
 poned. 
 
 Restriction on 
 a Roman tes- 
 tator by Lex 
 Faleidia. 
 
 Falcidian 
 portion. 
 
 English law 
 
 from restric- 
 tion to freedom 
 as to the testa- 
 mentary power. 
 
 before stated, analogous to that of executor in ours, was, 
 however, although very close, only analogous. Thus, in 
 the Civil Law, without a testamentary heir there could be 
 no legacy, and consequently, " if no instituted heir entered 
 on the inheritance, the gift of the legacy was useless. The 
 term was never applied as in English Law to a direct 
 bequest (g)," but was, in the Civil Law, "an injunction 
 given to the heir to pay or give over a part of the inherit- 
 ance to a third person {g)!' 
 
 With us, as before stated, legacies in a Will otherwise 
 valid, but naming no executor, are not lost, but will be 
 distributed by the administrator cv/m testcmiento annexo. 
 
 The precise points of resemblance and difference between 
 the hosres testamentarius of the Civil and the executor of 
 the English Law will be more fuUy explained in our 
 chapter on Executors (h). 
 
 A Roman testator, by reason of what was called the 
 Lex Faleidia, could not bequeath more than three-fourths 
 of his property in legacies, so that, whether there were one 
 heir or more than one, there remained to him or them, 
 under any circumstances, an entire fourth part of the 
 whole, which was termed the Falcidian portion (i). 
 
 This Lex Faleidia, passed B.C. 32, was an innovation 
 upon the old Roman Law of the Twelve Tables, inasmuch 
 as by the latter, a testator was able to leave all his pro- 
 perty in legacies. 
 
 It is noticeable that the progress of the English Law in 
 this respect has been of a directly contrary character, for 
 whereas the full power of an English testator to bequeath 
 his personalty as he pleased did not at one time exist 
 here, yet for many generations past, the law has permitted. 
 
 Meanings of 
 " Lex" and 
 "Plebiscitum." 
 
 (g) Sand. Just, Tit. 20 ; note to 
 Introduc. 
 
 {h} Chap. vi. 
 
 (i) Inst. 2, 22, De Lege Falei- 
 dia. "Lex est quod populus Eo- 
 manus, sanatorio magistratu inter- 
 
 rogante, veluti consule, constituebat. 
 Plebiscitttm est quod plebs, plebeio 
 magistratu interrogante, veluti tri- 
 buno, constituebat." — Just. Inst. 
 1, 2, 4. 
 
THE SUBJECT VIEWED GENERALLY. 77 
 
 and does now permit, a testator to dispose of all his effects 
 by Will in whatsoever manner he may think proper. 
 
 By the law of Scotland, "a father cannot bequeath In Scotch law 
 more than a share of bis movable estate, and cannot disposed of by- 
 dispose any of his heritable estate by WUl. He can, ^f^di^^cr 
 
 tr J J ' VIVOS or mcn-tis 
 
 however, by a proper deed, alienate and dispose his whole causd. 
 
 estate mortis causA to strangers, provided he execute 
 
 such deed in liege poustie," (legitiTna potestate), that is, Lkgepoustie. 
 
 any time during life other than sixty days before 
 
 death {k). 
 
 "With us in England, the power of bequeathing is Sketct of the 
 co-eval with the first rudiments of law ; for we have no bequeathing 
 traces or memorials of any time when it did not exist. j.''^f'^'i' 
 But we are not to imagine that this power of bequeathing 
 extended originally to all a man's personal estate. On 
 the contrary, Glanvil will inform us that by the Common 
 Law as it stood in the reign of Henry II., a man's goods 
 were to be divided into three equal parts : of which one 
 went to his heirs or lineal descendants, another to his 
 wife, and the third was at his own disposal . . . The 
 shares of the wife and children were called their reason- "E«asonable 
 able parts ; and the writ de rationabili parte honormn 
 was given to recover them. This continued to be the 
 law of the land at the time of Magna Charta . . . and 
 Sir Hem-y Finch lays it down expressly, in the reign of 
 Charles I., to be the general law of the land " (I). This 
 rule of law has, however, been altered by imperceptible 
 degrees, and a person was able, at any rate in the time of 
 Sir Wm. Blackstone, to give by Will the whole of his goods 
 and chattels. When first the alteration began we are not 
 able to trace (I); but in our own day, a person may, as Present state 
 far as regards the extent of the gift, devise his realty and ^ power of 
 bequeath his personalty in whatever manner he may bequeathing. 
 choose. 
 
 (S) Paterson's Compendiirai of (1) 2 Black. Com. 491 ; see also 
 
 Englisli and Scotch Law, § 848, n. Co. Lit. 176 b ; Mr. Butler's notes, 
 5, and see § 662, n. 2 & 3. 5, 6. 
 
78 
 
 "WILLS OF PERSONAL PROPERTY. 
 
 Thellusson Act. "^g ^^^^ „ ^^ f^^ ^^ ^.^^^^.^g ^j^^ ^^^^^^ ^f ^.j^^ ^jf^^,, f^j, ^^ 
 
 a statute called the ThellussoD Act (m), no person shall, 
 by any deed or Will, dispose of any real or personal pro- 
 perty so that the produce thereof shall be wholly or 
 partially accumulated for any longer term than the life 
 or lives of such grantor or settlor, devisor or testator, or 
 the term of twenty-one years from the death of any of 
 such parties respectively, or during the minority of any 
 person who shall be living at the time of the death of 
 such grantor, devisor, or testator (n). 
 
 We have now considered in a general manner what a 
 Legacy is, according to the law of England, and a short 
 comparison has been made between a portion of the English 
 and Imperial laws of Eonie on the subject. Amongst other 
 things, the nature of a donatio mortis causd, and the chief 
 rules of law thereon, have also been discussed ; we have 
 observed what species of property is ordinarily given by 
 legacy, namely personalty, and it has been briefly shown 
 how, in certain respects, the Roman Civil Law resembles 
 and differs from our own in some points of testamentary 
 law; In short, it has been attempted to present to the 
 reader what may be termed a miscellaneous view of 
 the subject treated of in the present work, by which we 
 have partially cleared our ground, so as to be able to 
 pi'oceed from a general to a more particular consideration 
 of the matters in hand. Having already shown that 
 a legacy properly speaking, deals with personalty only, 
 or realty thereinto converted, by the direction of a testator, 
 it becomes necessary to inquire as to what, by the law 
 of England, is comprised under the denomination of 
 Personal Property. 
 
 (m) 39 & 40 G. 3, c. 98. On Real Property and Convoy- 
 
 (n)8eethelea,(i.mgcBBe of Griffiths ancing, 430 ; elao Bllis v. Maxwell, 
 V. Vere, 9 Yes. 127 ; Tudor's L. C. 3 Beav. 587; 10 L. J. Ch. 266. 
 
CHAPTER II. 
 
 OF PERSONAL PROPERTY. 
 
 The author of the work entitled " The Office and Duty 
 of Executors," quaintly says at the commencement of 
 Chapter V. that : — " The things which shall come to 
 executors/' — that is to say, what a testator may legally 
 bequeath, "are of great multiplicity, and would make a 
 large and confused heap if tied together in one bundle or 
 lump. I win therefore divide and sort them out in parts, 
 after the best manner I can." It is proposed by the 
 present writer now to pursue the excellent course indi- 
 cated in the latter clause of this quotation. 
 
 By the- Wills Act of 1838 (a), the words "personal Meaning of 
 estate " extend to and comprise the following species of jn^^? Wb 
 property : — A.ct of 1838. 
 
 Leasehold estates and other chattels real ; 
 
 Monies ; 
 
 Shares of government and other funds ; 
 
 Securities for money (not being real estates) ; 
 
 Debts ; 
 
 Choses in Action ; 
 
 Rights ; 
 
 Credits ; 
 
 Goods ; and 
 AH other property whatsqever, which by law devolves Whatever may 
 upon the executor or administrator, and to any share or o^^/executo 
 interest therein (a). is personalty, 
 
 (a) 1 Vict. c. 26, 6. 1. This statute does not govern Wills made before 
 Jan. 1, 1838. 
 
80 
 
 WILLS OF PEESON'AL PROPERTY. 
 
 and may be 
 bequeathed as 
 a legacy. 
 
 Personalty, 
 how regarded 
 in law at the 
 present day. 
 
 Examination 
 . of terms. 
 
 Chattels Beal. 
 
 Everything included in this comprehensive list may, 
 therefore, be bequeathed as a Legacy, and will be assets 
 in the hands of an executor. 
 
 "Our courts now," says Blackstone, "regard a man's 
 personalty in a light nearly, if not quite, equal to his 
 realty ; and have adopted a more enlarged and less 
 technical mode of considering the one than the other; 
 frequently drawn from the rules already established by 
 the Eoman Law, whenever these rules appeared to be 
 well grounded and apposite to the case in question, but 
 principally from reason and convenience, adapted to the 
 circumstances of the times ; preserving withal a due 
 regard to ancient usages, and a certain feudal tincture, 
 which is still to be found in some branches of personal 
 property " (6). 
 
 We will now examine some of the teims above enume- 
 rated, with a view to ascertaining their legal import. 
 And first as to Chattels Eeal. 
 
 By this expression is meant certain things which, 
 though not in themselves real property, yet in their 
 nature appertain to, and ha,ve some affinity with, realty. 
 Thus, all estates for terms of years, whether long or 
 short (c), mortgages (d), a right to the next presentation 
 to a benefice (d), lands devised to executors for, and until 
 payment of debts (e), apples growing on a tree, or the tree 
 itself (/), " a box with writings of land," that is title 
 deeds (/), and generally any estate in land if limited in its 
 duration, is a chattel real ; for although it is an interest 
 in land, or, as lawyers usually say, savoixrs of the realty, yet 
 
 (i) 2 Black. Com. 385 ; "Wms. 
 P. P. 1. The student of the Civil 
 Law wiU perceive that property of 
 a movable character, as chattels, 
 was in this system of j.urisprudenoe 
 deemed of more importance than 
 property of an immovable character, 
 as land. With us the reverse 
 is the case. Wms. R. P., Intro- 
 
 duo, chap. 
 
 (c) Wms. R. P., ut supra. 
 
 {d) 2 Black. Comm. 386. 
 
 (e) Co. Litt. 42 a. But read with 
 this 1 Vict. c. 26, ss. 30 & 31 ; also 
 Jarmau on WiUs, eh. 34. 
 
 (/) Termes de la Ley, sub voc. 
 "Catals." 
 
OF PEESONAL PROPERTY. ' 81 
 
 in contemplation of law it is merely personalty. As such To whom they 
 it will, if bequeathed, devolve on a testator's executor ; or, ^teatecy. ^ 
 in case of intestacy, on his administrator, and not on the i 
 
 heir at law (c/). 
 
 This certainty of termination at a specified date, fur- Certainty of 
 nishes the reason why some estates in land are accounted mateany" 
 as simply chattel interests therein, and the rule of law on interest to be 
 
 of ii clia>tt6l 
 
 this point may be concisely stated in the words of a very character. 
 eminent conveyancer : — 
 
 " Estates which are not of freehold are merely chattel 
 interests " (h). With respect to the term " freehold," 
 we may observe that it is an estate in lands or tene- 
 ments held in fee simple, fee tail for life, or pur autre 
 vie, and no estate less than one for some life is a free- 
 hold. 
 
 The word " chattel," according to Sir E. Coke («), is a Meaning 
 French word signifying goods. Blackstoue says that the "chatfel." 
 word is derived from the technical Latin word eatalla, 
 which primarily signified only beasts of husbandry or 
 cattle, but in its secondary sense was applied to all mov- 
 ables in general (k). Probably, however, the remark of 
 a learned and popular living writer, that the precise 
 derivation of the word has not been traced (l), is correct ; 
 but this is a matter of little importance. Its meaning 
 is well established in- English law,, as comprehending 
 nearly every species of property not actually realty or 
 freehold. 
 
 Chattels are ordinarily with us divided into two classes, Chattels gene- 
 Real and Personal (m). The Civil Law distinguishes the ^^^^ into two 
 things included in the former, as Bona mmiobilia, or im- main classes. 
 movable goods, and those in the latter as Bona mohilia, 
 or movable goods, that is to say, such as can be annexed 
 to, or attendant on, their owner, and may be carried about 
 
 (g) Wms. Exors., pt. 2,, bk. 2, (ft) 2 Black. Comm. 385. 
 
 ch. 1, sect. 1, p.. 670. {I) Wms. R. P. 6. 
 
 (k) 1 Prest. Cony. 42. (m) 2 Black. Comm. 387. 
 
 (i) Co. Lltt. 118 i.. 
 
82 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Sub-divisions 
 of animate 
 and inanimate 
 cliattels. 
 
 True character 
 of Cliattels 
 Eeal, 
 
 Incorporeal 
 chattels. 
 
 Chattels 
 Vegetable. 
 
 from place to place. We may again divide the latter into 
 things animate and inanimate, the first sub-division 
 including horses, cows, sheep, fowls, and all tame animals 
 generally (n), the second containing chattels of which the 
 character is obvious. Things personal in our law, says 
 Blackstone, do not only include things movable, but also 
 something more, the whole of which is comprehended 
 under the general name of CHATTELS ; the idea of goods, 
 or movables only, being not sufficiently comprehen- 
 sive to take in everything that the law considers as a 
 CHATTEL INTEREST, and for this reason it is that we 
 distribute chattels into their two main classes Real and 
 Personal (o). As to the former, however, Mr. Serjeant 
 Stephen is of opinion that " they are not properly the 
 subjects of property, but rather modifications of property, 
 or species of estates in a certain kind of subjects, viz., the 
 things real. When considered indeed in reference to the 
 distinction between real and personal estate they are held 
 ta fall under the latter denomination, their incidents 
 being in general the same with property in movables ; 
 but as regards the distinction between things real and 
 things personal, they appertain to the division of things 
 real, &c." (jp). 
 
 The same writer mentions another kind of chattel 
 which he terms Incorporeal, and which he makes 
 equivalent to a right or interest connected with 
 some other corporeal chattel, as a patent right or copy- 
 right (q). 
 
 There are also personal effects of a vegetable character, 
 for instance, the fruit of a tree, if picked, its lopped 
 branches, or even the tree itself when felled, and 
 these when thus severed from the ground may be styled 
 
 (m) Shep. Touch. 468 n. 
 
 (o) 2 Black. Comm. 385, 386. 
 
 (p) 2 Steph. Comm. 2. The ob- 
 servations above cited are founded 
 on the principle that there can be 
 
 no absolute ownership of realty in 
 England as of personalty. A man 
 can only hold an estate in realty. 
 Wms. R. P., ch. i. 
 (?) 2 Steph. Comm. 9. 
 
OB^ PERSONAL PKOPERTY. 83 
 
 chattels Vegetable. Apples, pears, grass when cut, are 
 also of this description (r). 
 
 Again, there are other products of the earth raised Emblements. 
 annually by labour and manurance — ^the latter word, in 
 its legal sense, meaning cultivation generally, as well 
 as mere manuring — called emblements. This term 
 though strictly appUed only to the profits of sown land — 
 from the French Embler, to- sow — has yet been extended 
 to roots planted and other anmud artificial productions, 
 and includes hops, melons, cucumbers, artichokes, carrots, 
 &c., &c. (s). It does not, however, comprehend fruit- 
 trees, grass, and the like, because these are not planted 
 annually at the expense and labour of the tenant, but 
 parLake more of the character of a permanent, or natural 
 profit of the earth (s). 
 
 All these Real and Personal Chattels above spoken General mle of 
 of, may be bequeathed by a testator, and the general o™eihip*of 
 rule of law concerning Chattels Real and Personal is, chattels real 
 that they shall go to the executor or administrator by when con- ' 
 virtue of his office, and not to the heir (t) ; so that leases ^)<^^^^^^ f^ ^"^ 
 
 . . tmct things. 
 
 for years, next presentations, growmg corn, grass cut and 
 secured, money, stock, plate, furniture, and so forth, will 
 generally be assets in the hands of the executors or 
 administrators. 
 
 But although the general rule of law is as we have Rule when 
 just stated . it, namely, that no chattel interest, especially arrannexfdto 
 those of a corporeal and movable character, shall go to some freehold 
 the heir, but shall vest in the executor or administrator (w), i^ougg. 
 yet there is also another rule to be borne in mind, namely, 
 that where chattels, though in themselves only personal, 
 are so annexed to, and incorporated with, the freehold as 
 to form part thereof, and are consequently necessary to the 
 well-being and proper enjoyment of an inheritance, then 
 
 (r) 2 Black. Com. .389. Exors., pt. 2, bk. 2, eh. 1, sect. 1, 
 
 (s) Id. 122, 145, 403. 670. 
 
 (i!) Shep. Touch. 468 ; 1 Wms. («) 2 Black. Comm. 427. 
 
 G 2 
 
8i 
 
 WILLS OF PERSONAL PROPERTY. 
 
 "Purchase." 
 
 Devisee's rights 
 to articles 
 annexed to 
 the freehold. 
 
 Locks, keys, 
 &c., &c. 
 
 Annexations to 
 the freehold 
 cannot be be- 
 queathed from 
 the heir or 
 devisee of 
 the land. 
 
 they shall accompany it wherever it may vest, not only by 
 descent (x), but also by purchase (y). 
 
 The technical meaning of "purchase," it will be remem- 
 bered, is the acquisition of landsy tenements, and heredita- 
 ments by any means other than by descent or inheritance; 
 which being so, even an heir who takes by devise is a pur- 
 chaser of lands, &c., although in the absence of the devise 
 he might have inherited them, and of course consideration 
 for the gift is not necessarily implied by the word " pur- 
 chase," used in its legal sense. 
 
 In general a devisee of land, &c., will be entitled to all 
 articles annexed thereto, whether they were so before 
 or after the date of the devise, and whether the things 
 were actually, or only constructively annexed, as locks, 
 keys, rings of a house, and this is a very old rule of our 
 law {z). But a tenant for life or in tail, of a freehold 
 house cannot bequeath away the doors, windows, or wains- 
 cot of a house, because the house itself is not devisable by 
 persons in this position (z). 
 
 The things which are considered by the law as vesting 
 in the heir at his ancestor's decease, and as necessary to 
 his full enjoyment of the inheritance, cannot be bequeathed 
 away from him, especially if the estate itself descend upon 
 him ; indeed, to use the words of Blackstone in refer- 
 ence to heir-looms — which, when they exist, are always 
 considered as chattels closely connected with the inherit- 
 
 Kule a's to con- 
 flict between 
 heir and 
 execntor. 
 
 Importance of 
 the feature — 
 "Enjoyment 
 of the inherit- 
 
 (x) Step. Touch. 469, 470 ; Ex 
 •parte Quincy, 1 Atk. 477 ; Dudley 
 Tt. Warde, Amb. 113 ; Lawton v. 
 Scdrrum, 1 H. Bl. 259 n. (errone- 
 ously cited in 3 Atk. 15 n. as Law- 
 ion V. Lawton) ; Elwes y. Mawe, 
 2 Sm. L. C. "As between ?ieir 
 and eaxcutor the rule obtains with 
 the most rigour in favour of the in- 
 heritance and against the right to 
 disannex therefroia, and to consider 
 as a personal) chattel anything which 
 has been annexed thereto." Per^ 
 Lord Ellenboraugh, C. J. (1803). 
 
 See also the great case of Fisher v. 
 Dixon, 12 CI. & Fin., H. L. Cas. 
 312, where Lord Cottenham lays 
 stress upon the feature " better en- 
 joyment of the land itself," in sup- 
 port of the above rule as between 
 heir of tenant in fee and ths exe- 
 cutor or administrator. 
 
 (y) The above a,uthorities are 
 equally applicable to the case of 
 pui'chasers, in the technical sense 
 of the term, as^ to that of the heir. 
 
 (z) See Amos & Fer. 246. As to 
 locks, keys, holts and bars, see the 
 
OF PERSONAL PROPERTY. 85 
 
 ance — the owner may mangle and dismember his estate as 
 he pleases during his life, yet he cannot do so by his Will (a). 
 
 Where, however, a testator " has a devisable interest in If a testator 
 
 a house, &c., he may devise the incidents of the house fnterest^hJThe* 
 
 and things that are annexed to the house, either together principal he 
 
 with, or in separation from, the freehold " (&). A tenant in regard'^to" 
 
 for life or in tail, having no such devisable interest, cannot ^^^ accessory. 
 
 of course do so, and any attempt in this respect would „ in°*ai/™ave^ 
 
 be void, unless the things are severable from the free- not sucli 
 
 hold, and not incident to the inheritance and essential to , ' 
 
 but tliey can 
 
 ^ts enjoyment. devise things 
 
 Suppose that A., the absolute owner of a house, were to "n^cidentto the 
 devise it to B., but should give the incidents of the house inheritance. 
 to C. : the question would be, to whom ought they to Devise of housR 
 
 ,,„...„.,.,. , .^ , , to B., not the 
 
 belong ? Agam, it A. died intestate as to his realty, but heir, excepting 
 devised the incidents of the house to B., the same ques- ^^l'""-'" 
 tion would arise as before. favour of c. 
 
 The answer to each depends upon first, what is meant Intestacy of A. 
 by the " incidents " of a house ; secondly, the wording of ^fth a devise ' 
 the Will; and lastly, the intention of the testator. When it "[j^^^^^^b^ 
 is said that a man cannot by Will mangle and dismember ^^^ ^^^ ^^_^^ 
 his estate, it must be borne, in mind that this refers to an ca^es must be 
 instrument couched in general terms, because the absolute ' 
 
 owner of a house, &c., can of course do what he may think general terms 
 proper in regard to it(c). But the law, looking upon ^^.^iehefr'' 
 
 or devisee of 
 
 judgment of Coleridge, J.; in 5Mop cates that such owner maj/ dispose the fixed ap- 
 
 V. Elliott, 24 L. J. Ex. Ch. 230, by WDl of things annexed to hia ^^^^^^^j^^^ 
 
 where he says that these are as freehold away from the heir. Lord 
 
 much part of the house, and go with Hardwicke also says, in Lawton v. 
 
 it, as the doors, windows, &c., to Lawton, Z Aik.. : " I think even he- 
 
 which they belong. tween ancestor and heir, it would 
 
 (a) 2 Black. Comm. 429 ; Shep. be very bard that accessories should 
 
 Touch. 471. go in any instance to the heir." Yet 
 
 (h) Amos k Fer., Kxt. 245 ; Shep. the same great judge, in the same 
 
 Touch. 430. case, says : "You shall not destroy 
 
 (c) Lord Brougham, in his judg- the principal by taking away the 
 
 ment in the case of i^isAer V. iJicctm, accessoiy to it." And the rate is, 
 
 supra, says : " In the absence of that there is no relaxation between 
 
 any disposition by the absolute heir and executor. Per Lord Mans- 
 
 'owner of land," &c., which indi- finl^mLawtony. Salmon, uM supra. 
 
86 
 
 WILLS OF PERSONAL PROPEETY. 
 
 "Incident" 
 in law. 
 
 ' Incidents of 
 
 Word "Furni- 
 ture "in a Will 
 ■will not pass 
 fixtures from 
 the heir or 
 devisee of a 
 freehold house. 
 
 wanton spoliation of property as a public evil, sets its face 
 against unjust and capricious directions of testators, and 
 will, when possible, construe them in favour of him who 
 claims the estate unimpaired. Thus where A. bequeathed 
 the "furniture" of a freehold house to B., who claimed 
 marble slabs and chimney-pieces, it was held by Lord 
 Chancellor King, that these things could not be included 
 under the word "furniture," nor indeed could anything 
 else closely fixed to the freehold (d) — which are fixtures, 
 in the original sense of that word — inasmuch as they go 
 to the heir by the general rule of law. 
 
 The word " Incident " in law is said to mean, when 
 used as a noun, something appertaining to, and depending 
 on, another, called the principal (e). Lord Coke tells us 
 also, that " of incidents some be separable, and some in- 
 separable " (e). If the above definition of an incident be 
 correct, we may assume that the incidents of a house mean 
 such things as are absolutely necessary in regard thereto to 
 constitute a perfect edifice of the kind in question. These 
 would be doors, windows, grates, chimney-pieces, not orna- 
 mental, and so forth. Other things may be incident to a 
 house, such as wainscot, pictures, mirroj's, and furniture, 
 &c. ; but these axe not necessarily so, inasmuch as the 
 building may be complete, as a house, without them. Of the 
 former, however, which are inseparably incident to every 
 complete house, it may be said that an absolute owner, 
 desirous of bequeathing them away from his heir or de- 
 visee of the edifice itself, must actually enumerate them 
 by name in his Will, in order to carry out his intention, 
 for mere general words would not have this effect. 
 
 If the word "Furniture" is insufficient to pass these 
 necessary incidents, still less will the expression " fixed fur- 
 niture," for it has been said of this that it " may embrace 
 even more than the term ' fixtures ' in its strict sense " (/), 
 that is of something closely affixed clearly to the freehold. 
 
 {d) Allen v. Allen, Mos. 112. 
 {e} Co. Litt. 151 b. 
 
 (/) Amos & Fer., Fixt. 249. 
 
OF PERSONAL PBOPEETY. 87 
 
 Where, however, the testator is not the absolute owner Where testator 
 of the house, but a lessee for instance, neither he nor his iso>ily**ermor. 
 representatives having any interest in the freehold, it has 
 been held that things annexed to the house may pass by 
 his Will ig), that is, of course, supposing them to have 
 been placed there by the tenant himself, without the 
 intention of improving the inheritance, and that they can 
 be removed without causing serious inconvenience or 
 damage to the freehold (h). 
 
 With regard to the expression "Fixed furniture," it has "Fixed 
 been held to comprehend looking-glasses nailed to a wall, and ""^' ^"^' 
 a book-case standing on brackets, in a similar position ; but 
 the intention of the testator in the case referred to,was, as will 
 be seen on a perusal thereof, to make a distinction between 
 his fixtures, his ordinary furniture, and what he called fixed 
 furniture. The bequest was first of a leasehold messuage 
 — the legal term for bouse — with grates, locks, &c., and 
 other fixtures and fixed furniture to A. for life. Then it 
 went on to give him absolutely " other properties in the 
 messuage " not comprehended under the preceding terms 
 " fixtures " and "fixed furniture." The things above men- 
 tioned, namely, the looking-glasses and book-cases, were 
 held not to pass absolutely, but coming within the term 
 " fixed furniture " were, in point of fact, necessary and in- 
 separable imcideivts of the house, enjoyable by A. only 
 during his life (i), and therefore could not be taken by 
 him absolutely. 
 
 It is thus seen by what rules we should have to be The intention 
 guided in determining the respective rights of the claim- ^pui^ te of 
 ants in our supposed cases at page 85. " In the construe- great.™port- 
 
 _.-. . . ance in such 
 
 tion of Wills, the intention of a testator, more than any cases. 
 particular form of expression, is to be resorted to for 
 ascertaining whether things affixed pass. . . . And with 
 
 {g) Paton v. Sheppard, 10 Sim. (i) Birch v. Dawson, 2 A. & E. 
 
 186. 37; 4 L. J., K. B. 49. 
 
 '(K) "Woodf. Land, and Ten. , chap. 
 12, sect. 8 (ct), 526. 
 
88 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Devisee's right 
 to accessaries. 
 
 Fixtures, Heir- 
 looms, and 
 Emblements 
 next subjects 
 for inquiry. 
 
 The word 
 "Fixture." 
 
 respect to this, it may be observed tbat, the intention of 
 a testator is frequently indicated by the circumstance of 
 the articles having been used together v?ith the premises 
 during the lifetime of the party " (Jc). But, of course, this 
 must be taken as subject to the foregoing observations 
 concerning the necessity for the use of specific terms by 
 testators desirous of disintegrating their property. 
 
 As to a devisee of a freehold estate, it may then be stated 
 that he will, in general, acquire the property in all things 
 which are affixed to the freehold, and he will also have a 
 right to all title deeds, charters, &c., relating to the inherit- 
 ance and the box in which they are ordinarily kept, 
 whether fastened or otherwise (1), since although but 
 chattels in themselves, they are necessary to the enjoy- 
 ment of the property, and savour so much of realty, as in 
 the eye of the law to be deemed part of the freehold (m). 
 In short, a devisee stands on the same footing in this 
 respect as the heir who comes into possession of the 
 property {n). 
 
 This brings us to the consideration of the terms Fix- 
 tures, Heib-looms, and a further reference to Emble- 
 ments, already mentioned. These we will treat of shortly 
 in the order here indicated. 
 
 The word " Fixture," which is, comparatively speaking, 
 a very modern term of law (o), is one that introduces us 
 to a subject requiring much concentration on the part 
 of a writer to properly elucidate- it, and often consider- 
 able attention from a reader to understand what may 
 be stated. It is proposed here to say something about 
 Fixtures, but with as much brevity as is consistent with 
 the object now in view, namely, to show how they are 
 connected with the law relating to Wills of Personalty. 
 
 The etymological and natural meaning of a Fixture, ex 
 
 [Ic) Amos & For., Fixt. 251. 
 (I) Shep. Touch. 470, 471. 
 (m) 1 Wins. Exors., pt. 2, bk. 2, 
 oh. 2, sect. 3, 724. 
 
 (n) Shep. Tmreh. 470. 
 
 (o) Per Parke, B., in Sheen tr. 
 Richie, 5 M. & W. 175 ; 8 L. J. 
 Ex. 217. 
 
OF PERSONAL PROPERTY. 89 
 
 vi termini, is something which is firmly attached to Its natural and 
 
 another thing, presumably of a more stable character than ^^"nF 
 
 itself. In law, however, this term has been favoured with 
 
 such a variety of significations, that one writer of eminence its legal 
 
 remarks that, in general, "Fixture" denotes the very ^™i""^- 
 
 reverse of what its name appears to indicate ! (p) It has 
 
 been called something which is essential to the use of the 
 
 freehold, whether actually fastened to it or not ; and again, 
 
 it has been said not necessarily to mean anything affixed 
 
 to the freehold (q). 
 
 It will no doubt occur to the reader that we might as Unsatisfactoi-y 
 well either expunge so peculiar a word from our legal theTerm. " 
 vocabulary altogether, or else bestow upon it a more 
 definite signification than it possesses ; or, as a third 
 alternative, replace it by some other term more appro- 
 priate and more expressive of the sense which is now 
 usually ascribed to the word " Fixture " (r). 
 
 This is set forth in the following definition, which the Present mean- 
 reader may accept as conveying the purport of " Fixture " ^^°i ^^f'^' 
 as now generally received, and, at any rate, that the word tempted to be 
 
 1 1 ■ J.1 ■ 1 defined. 
 
 possesses when used m this work. 
 
 Fixtures then, may be described as articles originally of Removability 
 a chattel character, anixed or annexed to, but not mcor- definition. 
 porated with some freehold tenement, for purposes of profit, 
 utility or ornament, severable and lawfully removable there- 
 from during the term of tenancy, and therefore saleable and 
 bequeathable, by the party who annexed them, or his repre- 
 sentative, against the will of the owner of the freehold (s). 
 
 ip) Chitty, Gen. Princ. 161. ff alien v. Bunder, 1 Cr. M. & R. 
 
 (q) Per Parke, B., in Sheen v. 266 ; 3 L. J. Ex. 260 ; Amos & 
 
 Eiekk, 5 M. & W. 175; 8 L. J. Ex. Per., Fixt. 2, 3. Martin, B., in his 
 
 217. judgment in Elliott v. Bishop, stated 
 
 (r) The term "Accessory," for that the definition of a Fixture 
 
 instance, or "Incident," would ^ysb. in Hallen y. Bwnder y^as the 
 
 perhaps better express the ordinary best within his knowledge. 24 L. J. 
 
 signification of "Fixture," than Ex. 38; but see the case in the 
 
 does the ambiguous word itself. same volume at p. 230. 
 
 (s) Judgment of Parke, B., in 
 
90 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Annexation 
 and "complete 
 annexation. " 
 
 Eastwood. 
 
 Annexation, 
 which is a 
 question of 
 fact, depends 
 upon the cir- 
 cumstunces of 
 each case. 
 
 MdUand t. 
 Sodgson. 
 
 Difficulty of 
 deciding as to 
 what is an- 
 nexation. 
 
 Degree of 
 annexation. 
 
 Object of 
 annexation. 
 
 Intention to 
 make a chattel 
 part of the 
 freehold makes 
 it such. 
 
 As to what is meant by annexation, it ipay be said in 
 the words of the learned writers mentioned below (f), that 
 "If it be found that in point of fact, the connection 
 with the soil does not amount to complete annexation, and 
 that the thing is not strictly affixed, it remains in that case 
 to all intents and purposes, a mere personal chattel, and 
 is in the same situation as any other chattel which has 
 never been brought upon the premises." 
 
 In Hdlawell y. Eastwood (t), decided in IS.^l, Parke 
 B. stated annexation to be a question of fact depending 
 upon the circumstances of each case, and principally upon 
 two considerations ; first, the mode of annexation to the 
 soil or fabric of a house, and the extent to which the 
 article was united ; and secondly, on the object and pur- 
 pose of the annexation. This opinion, subject to a slight 
 qualification, not necessary to be here mentioned, was 
 declared by the Court of Exchequer in a recent case (u), 
 to state the true principles of law as regards annexation, 
 but the Court observed that, " it is very difficult, if not im- 
 possible to say with precision what constitutes an annexa- 
 tion " sufficient to make a chattel part of the freehold. 
 "It is a question which must depend on the circumstances 
 of each case, and mainly on two circumstances as indicating 
 the intention, viz. the degree of annexation, and the object 
 of aimexation. Where the article in question is no further 
 attached to the land than by its own weight, it is generally 
 considered a mere chattel; see WUtshear v. Cottrell {v), 
 and the cases there cited. But even in such a case, if the 
 intention is apparent to make the articles part of the land, 
 they do become part of the land ; see D'Uyncourt v. 
 Gregory " {x), which was, however, a case of ornamental 
 fixtures. 
 
 {t) 6 Exch. Kep. 295 ; 20 L. J. 
 Ex. 154. 
 
 (u) Holland \. Hodgson, L. R., 
 7 C. P. 328 ; 41 L. J. C. P. 146, 
 in which the judgment of the Court 
 
 was delivered by Blackburn, J. 
 
 (r) 1 E. & B. 674 ; 22 L. J. 
 Q. B. 177. 
 
 («) L. R. 3 Eq. 382 ; 36 L. J. 
 Ch. 107. 
 
OF PERSONAL PEOPEKTY. 91 
 
 In other words, if the things are affixed for the purpose Things annexed 
 of improving the inheritance they are not removable ; if onrnprovrng"^* 
 annexed for a temnorary purpose they are (li). ^^^ inheriiance 
 
 ^ , ^ , ■ , . , , . not removable. 
 
 " Perhaps the true rule is, that articles, not otherwise ^^^ ^] 
 attached to the land but by their own vjeight, are not to ttis subject as 
 be considered as part of the land, vmless the circumstances i^ia down. 
 are such as to show that they were intended to be part of 
 the land " (z). In this case, the onus of showing that they Onuspro- 
 are -so intended, is on those who assert that they have 
 ceased to be chattels (a). 
 
 On the other hand, " an article which is affixed to the Articles affixed 
 land, even slightly, is to be considered as part of the land,^ " y « ig y- 
 unless the circumstances are such as to show that it was 
 intended all along to continue a chattel." In this instance, Onus pro- 
 the onus lies on those who contend that the article is a 
 chattel (z). 
 
 It was stated by Parke, B., in Hellawell v. Eastwood, As to facility 
 in that portion of his judgment so particularly agreed to 
 by the Exchequer Chamber in the case cited below (z), 
 and to which we have just referred, that as to these ques- 
 tions concerning annexation, there was another matter to 
 be considered, namely, whether the article alleged to be 
 united to the land or house, could or could not be removed 
 integre salve et commode, without injury to itself or the 
 fabric of the buildings. , But more recently, we have it Criterion of a 
 stated on good authority, that the question as to whether acoessoij. 
 an article is only a personal chattel or a fixture, depends 
 upon whether it is or is not part of the land or building 
 from which it is proposed to be removed, not whether it 
 can or cannot be easily severed therefrom (a). 
 
 D'Eyncourt v. Gregory was, as lately remarked, a case ^.f^.*"""* ^' 
 of what are called ornamental fixtures, and the contest 
 
 (y) By tte Eoman Civil Law, a another man's land, the building 
 
 man built on Ms own grovmd with, became the property of the land- 
 
 another person's materials, the owner, quia omns qucd incecUflcatur 
 
 former was considered the owner of solo cedit. Just. Inst. 2, 1, 29, 30. 
 the building : if on the other hand, (s) Holland v. Hodgson, swpra. 
 
 he built with his own materials on (a) D'JEyncourty. Gregory, supra. 
 
^^ WILLS OF PERSONAL PEOPEKTY. 
 
 was between a tenant for life and a remainderman, but the 
 criterion of a fixture there laid down, seems applicable f<jr 
 determining also under other circumstances, what articles 
 will be comprised under the appellation generally. The 
 analogy between a tenant for life and an ordinary tenant 
 is extremely close (6), and concerning the relation of 
 landlord and tenant, it is truly said by Mr. A. Brown in 
 his able treatise on " Fixtures," that it is " the great and 
 fundamental " one " out of which most of the others spring, 
 or by analogy to which they have been moulded and regu- 
 lated" (c). This being so, it is presumed that the test of 
 the power to remove laid down in the above case, is gne 
 of very general applicability in determining what articles 
 may be severed from land or the fabric of a house. 
 Peculiarity of The foregoing is a slight sketch of this part of our sub- 
 on fixtures ^^ J®°* ^^ *^® abstract, but with regard to fixtures generally, 
 the rules of law concerning them, as well as the mode 
 of their application, are often obscure and difficult, and, 
 to use a mathematical expression, it may be said that 
 they vary directly as do the relations of the respective 
 The mere an- claimants to Fixtures. Indeed, so unsettled appear these 
 "h^ttUo^tte r'^l^s themselves, that it has been held, as we have seen, 
 freehold does that the term " Fixtures " does not necessarily mean 
 makTira" ^ things annexed to the freehold. Conversely, modern cases 
 Fixture. declare that the mere annexation of a chattel to the free- 
 
 hold does not necessarily cause it to become the property 
 of the freeholder; but, that in the former case the thing 
 may be shown to be a mere chattel, and in the latter it 
 becomes a question on the evidence whether the owner of 
 the chattel has or has not lost his property in it {d). 
 Things annexed It is important to bear in mind that many things 
 *"! thi^'^"''^ annexed to a freehold, that is an estate in fee simple for 
 annexed to an life, in tail or pur autre vie, are, as between heir and 
 
 (J) Amos & Fer. 133, 235. See the judgments in BoUand 
 
 («) Sect. 77. V. Hodgson, note («), p. 90, and in 
 
 (d) Sheen v. Mckie, 8 L. J. Ex. Chidley v. Churchwardens of West 
 
 217 ; 5 M. & W. 175 ; Lancaster v. Sam, 32 L. T. Kep. 4Sii. 
 
 £ve, 5 C. B. 717 ; 28 L. J. C. P. 
 
OF PERSONAL PROPERTY. 93 
 
 executor, considered as part thereof, which when annexed inferior 
 to an inferior holding are but chattels. If, for instance, °' 
 
 the testator be merely a termor, that is a tenant for a 
 certain number of years, such things would go to his 
 executor as accessory chattels (e), for they are no part of 
 his inheritance, and on the other hand, it would be absurd 
 that a lessee, who has but a particular interest in the 
 estate, should have an absolute property in anything not 
 parcel of the inheritance (/). 
 
 Disputes frequently arise between the personal repre- " Personal re- 
 
 ^ ,. ,, ,. T presentatives. 
 
 sentatives — that is, generally speaking the executors or 
 administrators — (g) of a deceased person and others 
 who lay claim to certain things belonging to him, in 
 which case it becomes necessary to determine to whom 
 they really belong in point of law. Very common causes 
 of these contentions are the articles of which we have just 
 spoken, namely Fixtures ; and in order that it may be 
 understood how they may be dealt with by Will, claimed 
 as against a Will, or under an intestacy, it will be as 
 well to place before the reader a condensed account of 
 how Fixtures are regarded by the law in particular cases. 
 
 As to the origin of this term, opinion appears to be Origin of tem 
 divided, Mr. Serjeant Stephen considering the word it- 
 self, to be of popular origin Qi), while others regard not 
 only the term Fixture but also the rules of law appertain- 
 ing thereto, as coming from the Civil Law . This latter 
 view is not an unnatural one, especially when we remem- 
 ber the Civil Law term Affixus which occurs in Justinian's " Aifixus " a 
 Digest (i), and also that the governing maxim of our law civil Law. 
 
 (e) Off. Exor. 157. dersley, V. C. The word "repre- 
 
 (/) Herlakenden's Case, i Co. sentatives " standing alone in a 
 
 Hep. 62. Will appears, however, to signify 
 
 (g) 1 Rop. Leg. 124 ; but the the testator's executors or adminis- 
 
 tenn may me.in a deceased person's trators only. 
 
 statutory next of kin as in Alger y. (&) 2 Comm. 217. 
 
 Parrott, L. R. 3 Eq. 328 ; Jw re (i) " Omne quod insedificatur solo 
 
 Gryll's Trusts, L. R. 6 Eq. 589 ; cedit," Inst. 2, 1, 29. See Dig. 
 
 and see In re Crawford's Trusts, 50, 16, 245 ; 1 Mackeld. Civ. L. 
 
 2 Drewry, 230, Judgment of Kin- 152, § 147. 
 
94. 
 
 WILLS OF PERSONAL PROPERTY, 
 
 Governing 
 maxim of 
 English law on 
 this subject. 
 
 Plantam 
 ponere. 
 
 Satio. 
 Incedificare. 
 
 Oedere. 
 
 Accessories a 
 s.vnonym of 
 Fixtures. 
 Accesdo. 
 
 Accessoriwm, or 
 res accessoria. 
 
 on the subject is Quicquid plantatur solo, solo cedit, 
 derived almost totidem verbis from Justinian's Insti- 
 tutes (j). The maxim in question, however, which is 
 called by Wentworth a common saying (k), is not quite 
 equivalent in signification to the sentence quoted below (J) 
 from the Institutes. The latter refers exclusively to 
 buildings, whereas our " common saying " is applicable 
 alike to all things annexed to the soil either by growth 
 or by being placed there. The Romans used the expres- 
 sion plcunta/m ponere the inflexions of the verb in their 
 most exact and limited sense, that is in reference to 
 planting (T), while satio, from sero, sevi, satum, is used 
 for sowing, cedificare or incedificare and its forms being 
 employed to denote artificial and mechanical additions to 
 the soil or fabric of a building (m). In connection with 
 this term was also that of cedere in the sense of to belong 
 to, from which comes Accessio, or addition to property, 
 and accordingly, what we term Fixtures may be adequately 
 represented by the term Accessories to land or houses (n), 
 which means chattels incident to or belonging to some 
 principal thing. Accordingly, in the Civil Law, Accessio 
 means the very thing itself, and not the mere title 
 thereto (o), although commentators have used the word 
 to denote the mode in which the accessorium is changed 
 into property itself (p). It has been said this latter word 
 answers best to our Common Law terms of regardant, as 
 applied to a villein annexed to the soil ; appendant, that 
 is something annexed to an estate as a right of common ; 
 appurtena/nt, that is something also annexed to_ another 
 but from which it is different in nature, as an easement ; 
 and lastly to incident, which signifies what necessarily 
 
 0') See note (i), p. 93. 
 {k) "Office and Duty of Exe- 
 cutors," 145. 
 
 (l) Just. Inst. 2, 1 ; 31, 32. 
 
 {m) Ibid. ; 29, 30. 
 
 In) The dootriues of the Civil 
 
 Law on Accessories will be found in 
 2 Domat'B Civ. L. bk. 4, tit. 2, 
 sect. 4. 
 
 (o) 1 Mack. Civ. L. 279, § 266, 
 n. id). 
 
 {p) Sand. Just. 2, 1, 19, n. 
 
OF PERSONAL PROPERTY. 95 
 
 appertains to something else, as rent to a reversion, and 
 
 so forth (g). But although this may be so, yet the word 
 
 accessorium or res accessoria, meaning the subject matter 
 
 of the accessio, can properly be applied to those personal 
 
 chattels which we denominate Fixtures, and the Romans Artiecial acces- 
 
 Artificial Accessions (r). " CMw' 
 
 The present rules of our law on the subject under Feudal contri- 
 consideration have been evolved in a tedious, uneven and ^"*"'" *« ™r 
 
 rules on Fix- 
 
 altogether unsatisfactory manner from those which apper- tares, 
 tained to the feudal law regarding Waste. To a right Waste, 
 conception of the progress of our law in this respect, the 
 old doctrines concerning Waste should be perused ; but a 
 lengthy disquisition on this topic being without the scope 
 of the present treatise, it is proposed to do little more 
 than indicate some of the best authorities to be consulted 
 for information on the subject, and which are given 
 below (s). The connection between Waste and Fixtures Connection be- 
 however may be noticed, and this wiU easily be perceived Waste and 
 from the terms of the old and general rule of law which, ^^^ti^ss- 
 in effect, was that when once a thing was annexed to 
 the freehold by a tenant, no matter with what object, it 
 belonged thereto for ever, unless the freeholders consented 
 to its removal. If the unfortunate tenant for years did 
 remove it without permission, he committed Waste, and 
 was " punishable in an action or writ of Waste " (f), which 
 made him liable to recompense thrice what the damage 
 
 done was assessed at(u). The writ of Waste was abo- Writ of Waste 
 
 abolisued. 
 lishedby the 3 & 4 W. 4, c. 27, s. 36, having previously fallen 
 
 (g) See 2 Black. Comm. 93; Co. Waste; Wms. R. P., chap. 1; 
 
 Litt. 121 b, n. 6 ; 2 Black. Comm. Judgment of Lord Ellenborough in 
 
 33 ; 2 Steph. Comm. 30 n. ; Co. Ultees v. Mawe, 2 Sm. L. C. ; 
 
 Litt 161 b. ; Wood's Inst. Civ. L., Lovmdesv. Bettte, 33 L. J. Ch. 451 ; 
 
 bk. 2, ch. 3, sect. 2. the luminous judgment of Einders- 
 
 (r) Wood's Inst. Civ. L., bk. 2, ley, V. C. 
 
 ch. 3. (<) Co. Rep., pt. 4, 64 ; Eerla- 
 
 (s) Co. Litt. 53 a ; 2 Black. Comm. henden's Case. 
 
 281 ; Amos & Eer. on Fixt. ; Bac. {u) 6 Ed. 3, c. 5. 
 Abr,, Tit. Waste; 1 Cru. Dig., 
 
96 
 
 WILLS OIJ' PERSONAL PROPEETY. 
 
 Present form 
 of action for 
 V\ aste. 
 
 Another view 
 of the con- 
 nection between 
 Waste and 
 Fixtures. 
 
 Waste and 
 Trespass; how 
 distinguished. 
 
 into disuse. It has given way to a much more expedi- 
 tious and easy remedy, by an action on the case in the 
 nature of Waste, which may be brought for damages 
 either by a person in remainder or reversion for life or 
 years as well as in fee, and the plaintiff may secure his 
 costs which he could not have done in the action or writ 
 of Waste (x). 
 
 Again, the connection between Waste and Fixtures 
 may further be seen in this, that the gist of an action for 
 the former is the actual injury done to the inheritance or 
 reversion (2/) by the improper removal of the Fixtures 
 whether they belong or not to the reversioner {z), and an 
 action on the case for damages is, as just observed, the 
 appropriate remedy for the wrong, if any, committed by 
 such removal. In other words, Waste lies for spoliation 
 caused by improperly removing Fixtures ; the remedy 
 for the Fixtures themselves will be noticed presently. 
 
 It may probably be thought that what we have called 
 Waste — but which, as correctly stated by Vice-Chancellor 
 Kindersley in a case already cited (a), should in strictness 
 be termed Spoliation — is also closely allied to Trespass. 
 This is so, but "the term 'Waste ' was used in the sense 
 of spoliation with a technical and personal application. 
 It was considered Waste when the plaintiff and defendant 
 
 (x) 2 "Wms. Saund. 252, n. 7. 
 " The Common Law gave an action 
 for Waste in three cases only, 
 tenancy by the curtesy, tenancy in 
 dower, and guardianship in chi- 
 valry." Amos & Fer. on Fixtures, 
 271. It was only after the Statute 
 of Gloucester, 6 Ed. I,, that ques- 
 tions as to the removal of Fixtures 
 arose : Ihid. 21. As to tenants for 
 life and in tail, see the same work, 
 p. 140. Before the Judieature Acts, 
 waste was distinguished into two 
 kinds, legal and equitable, in which 
 latter was included such acts as 
 
 felling ornamental timber, da- 
 maging the mansion house of an 
 estate, &c. (See by way of example, 
 MicMethwaite v. MickUlhwaite, 1 
 De G. & J. 504 ; 26 L. J. Oh. 
 721.) But now, by the first Judi- 
 cature Act, sect. 25, subsect. 3, the 
 distinction between legal and equi- 
 table waste is abolished. 
 
 (y) Young v. Spenaer, 10 B. & C. 
 145. 
 
 («) Bare v. Horton, 5 B. & Ad. 
 715. 
 
 (a) Lowndes v. BetUe, 33 L. J. 
 Ch.. 451, Judgment. 
 
OF PERSONAL PROPERTY. 97 
 
 had a privity (b) of title such as that of tenant for life and "Pvivity." 
 
 remainderman. . . . but when parties (6) did not claim in "Parties." 
 
 that way, but by an adverse title, any act done by the 
 
 one or by the other of them was then called Trespass. 
 
 That act might have been one of destruction or spoliation. 
 
 That broad distinction runs through all those cases," 
 
 namely the older ones of our law (c). So far at least as Tendency of 
 
 regards the jurisdiction of Equity to grant injunctions *[^gtro*"^'°?- *° 
 
 where Waste or Trespass is alleged, the constant tendency tion between 
 
 of the decisions is to abolish the unreasonable distinction itespasT 
 
 between Trespass and Waste (c). 
 
 The sources whence the present rules of our law on Sources of the 
 Fixtures have been derived are the Eoman Civil Law (d), f^^^^^^^ "* 
 the Feudal system (e), Statutory Enactments (/), Custom (g), 
 Judicial Decisions Qi), and the requirements of advancing 
 civilization, and it may be remarked that, to the last two 
 causes, we mainly owe the present state of our law on the 
 subject and its beneficial divergence from the older and 
 more severe rules on the subject (i). 
 
 A Fixture being nothing more nor less than something A Fixture 
 originally a chattel personal, but which has been annexed t^e^f^^ehoid' 
 to some freehold, it seems to follow that subsequent sever- resumes its 
 ance therefrom causes the article annexed to again resume character, 
 its chattel character. But the circumstance of the pro- 
 
 (b) By the term of law "Pri- Broom'sCom.L.,bk. 2, ch.l, sect. 2. Meaning of 
 
 vlty" is meant " a derivative kind (c) See note (a), p. 96. "Privity," 
 
 of interest, founded upon, or grow- (d) Dig. 19, 1, 13, ss. 14 — 18; " j /^Jf^.' . 
 
 ing out of the contract of another. Just. Inst. 2, 1, ss. 22 et seq. ; 
 
 as that which subsists between an Wood's Inst. Civil L. bk. 2, ch. 3. 
 
 heir and his ancestor, between an (e) See note, p. 95. 
 
 executor or testator, and between a (/) 14 & 15 Vict. o. 25 ; 38 & 39 
 
 lessor or lessee and his assignee." — Vict. c. 92 ; Agricultural Holdings 
 
 Burr. Law Gloss. Persons who Act, 1875. 
 
 have this connection or interest are (g) Amos & Per., Fixt. 44, 45, 
 
 called " Privies," and " He who is ei passim. 
 
 not a party is a privy." — Plowd. (h) See Blwes v. Mawe, and the 
 
 363. The Parties are those who cases cited in the notes thereto, 
 
 are primarily concerned in any con- Sm. L. C. 
 
 tract, business, or action. See also (i) Amos & Fer. Introduc. 
 
 H 
 
 and "Privies.' 
 
98 
 
 WILLS OP PERSONAL PHOPEETY. 
 
 Variety of 
 relationship 
 between 
 claimants to 
 Fixtures. 
 
 Classification 
 of persons 
 between whom 
 contentions as 
 to Fixtures 
 may arise. 
 
 perty being subject to a right of removal, does not affect 
 the nature and condition it has acquired by incorporation 
 with the freehold, namely, that of realty (j). To this class 
 of property all annexations to the freehold belong, for the 
 maxim is, Quicquid plantatur solo, solo cedit. 
 
 Such being the case, it will readily be seen that claims 
 may frequently arise respecting Fixtures, only to be 
 decided by litigation. If we also bear in mind the true 
 definition of a Fixture, namely, a chattel annexed to a 
 freehold, but removable therefrom by a temporary occu- 
 pier, and therefore saleable or bequeathable, it is not 
 difficult to imagine that the claims referred to, may 
 possibly be by persons standing in an extensive variety 
 of relations to each other. 
 
 Glancing at the classification below, it will be noticed 
 that contests respecting Fixtures may take place between 
 the following persons respectively : — 
 
 , (A.) Between landlord and tenant ; and these are of 
 greater frequency than any other. 
 (B.) Between the executor or administrator of a tenant 
 
 in fee simple and his heii- or devisee. 
 (C.) Between the executor or administrator of a tenant 
 in taU, his heir, and the reversioner or re- 
 mainderman of the estate. 
 (D.) Between the executor or administrator of a tenant 
 for life, and the reversioner or remainder- 
 
 man. 
 
 (E.) Between assignor and assignee (k), or 
 (F.) Between mortgagor and mortgagee (I). 
 (G.) Between vendor and vendee (m). 
 
 U) Id- P- 10. 
 
 (k) Boyd V. Shorrock, L. R. 5 
 Eq. 72 ; 37 L. J. Ch. 144. 
 
 (1) Climie v. Wood, L. R. 3 Ex. 
 257 ; 38 L. J. Ex. 223 ; LongboUom 
 V. Berry, L. R. 5 Q. B. 123 ; 39 
 L. J. Q. B. 37 ; London and West- 
 
 minster Loan and XHscowni Co. v. 
 Drciie, 6 C. B. 793 ; 28 L. J. C. P. 
 297 ; Meux v. Jacob, L. R. 7 E. 
 & L App. 481 ; 44 L. J. Ch. 481. 
 
 (m) Colegrave v. Dias Santos, 2 
 B. & C, 76. 
 
OF PERSONAL PEOPEETY. 99 
 
 (H.) Between the trustee in bankruptcy and other 
 
 claimants (ti). 
 (I.) Between outgoing and incoming tenants (o). 
 Fixtures may also be considered as to their particular Fixtures 
 nature ; that is to say, whether they are ^To thd? 
 
 (a.) Trade, or trade and manufacturing Fixtures, particvUar 
 which the law deems the most important of 
 all (p). 
 (b.) Those erected for the enjoyment of the profits of 
 land (q), which are usually considered as a 
 species of trade Fixtures, and distinct from 
 (c.) Agricultural Fixtures simply (r). 
 (d.) Domestic, and 
 (e.) Ornamental Fixtures. 
 Fixtures, as between landlord and tenant, are also ordi- "Landlord's 
 narily spoken of as Landlord's Fixtures and Tenant's ^<^*enant's ^""^ 
 Fixtures, the former meaning " pers9nal chattels annexed Fixtures : " 
 to the freehold by the tenant during his term, for purposes ^ ^ eyare. 
 of trade, convenience, or ornament, and which he has a 
 right to remove during the term in the absemce of any 
 express stipulation or local custom to the contrary. Land- 
 lord's Fixtures are those put up by the landlord either 
 before or during the term or by any previous owner or 
 tenant, or by any other person. Also such Fixtures put 
 up by the tenant during the term as the tenant has no 
 right to remove. All these constitute part of the free- 
 hold, and also part of the premises demised " (s). 
 
 (m) Sx parte AsCbury, Ac. (Ssc. , aiithorities for points of law ; but 
 
 L. R. 4 Oh. 630 ; 38 L. J. Bank. they may be referred to for either 
 
 9 ; Tebb v. Hodge, L. E. 5 C. P. 73 ; purpose. The respective claims of 
 
 and see, as to the sale of fixtures the persons mentioned in (B),, (C), 
 
 by a' trustee in liquidation. Saint v. and (D) will be considered in ano- 
 
 L. E. 10 Ex. 137 ; ii L. J. ther portion of this work. 
 
 Ex. 33. {p) Amos & Per., Pixt. 21. 
 
 (o) See WoodfaU, Land, and Ten. (q) Id. Introd. 
 
 cb. 12, sect. 9, p. 540 ; also Damis (r) Id. ibid. 
 
 V. Jmies, 2 B. & Aid. 165. (s) "Woodfall, Land, and Ten. 
 
 Note. — The above cases are cited ch. 12, sect. 8, p. 515. But see Sb?- 
 
 more by way of iUustratioa than as land v. Modgson, L. E. 7 C. P. 328.- 
 
 H 2 
 
100 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Baron Martin 
 on the term 
 " Landlord's 
 Fixtures. " 
 
 Rules of law 
 not the same 
 for all classes 
 of Fixtures. 
 
 Baron Martin, however, in his judgment in the im- 
 portant case of Elliott v. Bishop {t), stated the expression 
 "Landlord's Fixtures" to be a "most inaccurate one," 
 although Baron Piatt admitted the term to be con- 
 venient for the purpose of distinguishing one class of 
 Fixtures from another. " All the materials of a house," 
 said the first-named learned judge, "are, before they are 
 fixed, chattels ; the bricks, the mortar, the timber, the 
 iron, and all the other materials of a house were origi- 
 nally mere personal chattels ; and there can be no doubt, 
 that if the landlord builds the house and puts in, for the 
 purpose of completing the house, for instance, chimney- 
 pieces, grates, stoves, bells, &c., which are in the house 
 when let to the tenant, they aU remain the property of 
 the landlord, and are part of the house, and are only to 
 be enjoyed by the tenant during the term, and are not 
 removable by him at all, any more than the walls, or 
 roofing or flooring. It seems, therefore, inaccurate to 
 apply the term ' Fixtures ' to anything which belongs to 
 the landlord ; but, probably, what is meant by the term 
 ' landlord's Fixtures ' are such articles as when once 
 annexed by the tenant cannot be disannexed or removed 
 by him ; and it is in this sense I understand the term to 
 have been used by the learned counsel for the defendant." 
 The term, however, is now too firmly connected with the 
 subject in hand to be summarily rejected, and in its 
 ordinary . acceptation means such Fixtures as by the 
 general rule of law are not removable by a tenant. 
 
 The rules of law are not the same for the different kinds 
 of Fixtures, whether these are regarded as to the persons 
 between whom disputes concerning them may arise, or as 
 
 (t) 24 L. J. Ex. 33. This case 
 was afterwards adjudicated upon in 
 the Exchequer Chamber (24 L. J. 
 Ex. 229), when the judgment of 
 the Court below was, as regards 
 the precise point decided, departed 
 from. From Elliott v. Bishop may 
 
 be seen the rule on the law of 
 fixtures as between landlord and 
 tenant, the effect of covenants to 
 leave fixtures, and the operation of 
 the doctrine of ejusdem generis in 
 connection with these things. 
 
ri OCT V 
 
 Iq ] 
 
 OF PERSONAL PEOPEETY. \ \ 19^1 / 
 
 to the particular character of the Fixtures themselves. In N^ iiBR^^^^ 
 order then to ascertain to whom they ought to belong when 
 claimed, it will be necessary to first consider in what rela- 
 tionship the claimants stand to each other, and then what 
 is the description of the Fixtures claimed. 
 
 To enter fully into this matter, not being germane to 
 the object of this treatise, we will, therefore, merely take 
 a general view of the law on the subject and as concisely 
 as its intricate character will admit of. 
 
 And first as to TRADE Fixtures : 
 
 These are, as the term imports, such articles as are Trade 
 erected, and annexed to the freehold, for the convenience considered. 
 and carrying on of trade and commerce. The rules of law 
 concerning the removal of these have been from early 
 time gradually relaxed in favour of tenants, " in support 
 of the interests of trade, which is become the pillar of the 
 state (u). Accordingly, the general rule of law concern- The general 
 ing the removal of Trade Fixtures at the present day is, i^g them, 
 that they may be removed by a tenant before, but not 
 after {x), the expiration of his tenancy, and provided that 
 no injury, or as little as possible, be done to the freehold 
 when they are severed therefrom. In the words of Lord 
 Hardwicke, " you shall not destroy the principal thing by 
 taking away the accessory to it." {y). 
 
 There are certain things which, when used for purposes How Trade 
 of trade, the law regards as trade fixtures, whereas if 
 employed for other purposes, as for ornament, they would 
 not be so considered (z). Thus, if the stock of a nur- Nurseryman' 
 seryman should consist of young trees, these would not, 
 in the eye of the law, be looked upon as annexed to the 
 
 (m) Penton v. Bobart, 2 East, 90. (y) Lawton v. Lawton, 3 Atk. 
 
 Judgment of Lord Kenyou. THs 15 ; see also the case of Foley v. 
 
 case, although here cited, must not, Adde7bbrooke, 13 M. & W. 174, in 
 
 it is apprehended, be looked upon which the rale as to removal of 
 
 as altogetler an unimpeaolied au- tenants' trade fixtures is distinctly 
 
 thority on the general law of fix- stated, 
 
 tures. (s) BtwMand v. Butterfidd, 2 
 
 (x) Minshallv. Lloyd, 2 M. & "W. Bro. & Bing. 54. The leading case 
 
 420 ; 6 L. J. Ex. 115. on ornamental fixtures. 
 
 Fixtures are 
 rei 
 
 trees. 
 
102 
 
 WILLS OF PERSONAL PROPERTY. 
 
 A border of 
 box. 
 
 Principle of 
 decisions in 
 the absence of 
 authority. 
 
 Poole's case 
 is the starting 
 point of the 
 decisions in 
 favour of right 
 to remove 
 Trade 
 Fixtures. 
 
 Satisfactory 
 basis on which 
 present rule is 
 established. 
 
 The Courts 
 favour a 
 custom in 
 favour of 
 removing 
 Trade 
 Fixtures. 
 
 No material 
 
 freehold, as they would be under most other circumstances, 
 because they are in" the soil exclusively for purposes of 
 trade (a). 
 
 So, a border of box can be removed by a tenant who is 
 a professional gardener, while an ordinary tenant could not 
 take it away unless by virtue of some agreement with his 
 landlord for the purpose (&). 
 
 The principle on which the Courts have acted when 
 deciding upon claims to Trade Fixtures, in the absence of 
 authority is, regard to the claims of custom, general expe- 
 diency, and public benefit and convenience (c). 
 
 Poole's case (d) (1704) is considered to be the starting 
 point of the subsequent decisions in favour of a tenant's 
 right to remove his Trade Fixtures (e). "Lord Holt, C. J., 
 held that duriTig Ms term a soap-boiler might well remove 
 the vats he set up in relation to trade; and he said, 
 moreover, that he might do it by the Common Law, and 
 not by virtue of any special custom, in favour of trade 
 and to encourage industry " (/). 
 
 Not only has this ruling " been confirmed by many 
 subsequent decisions, but a very sound and satisfactory 
 principle is assigned as the foundation of the privilege" {g). 
 
 The Courts have always in their decisions on ques- 
 tions of Fixtures, favoured the effect of a custom, and 
 it has not been considered necessary to prove the custom 
 relied on to have been immemorial, although the time of 
 its duration will be a material feature in the evidence 
 offered in support of it ig). Notwithstanding the im- 
 portance of custom in these cases, no decision has yet 
 been pronounced by the Courts on the exclusive effect 
 of custom as to the right to remove Fixtures (A). 
 
 But although respect will be shown to any special 
 
 ifl) Ex ■pearU Lloyd, 1 Mont. & 
 Ayr, 507 ; 3 L. J. Bank. 108. 
 
 (J) Empsqn V. Soden, 4 B. & Ad. 
 655. ' 
 
 (c) Per Lord Hardwicke, in Zaw- 
 ton V, Lawton, and per Sii- G. Rose, 
 
 in Ex parte Lloyd, supra, 
 (d) 1 Salk. 368. 
 (c) Amos & Fer., Fixt. 28. 
 (/) Id. ibid. 
 (3) Id. 45, 46. 
 (ft) Id. 46. 
 
OF PERSONAL PROPERTY. 
 
 103 
 
 custom or local usage in favour of Trade Fixtures, still in 
 all cases, whether decided by general law or particular 
 practice, the decisions imply that the removal of the 
 Fixtures shall not materially impair the freehold or 
 main edifice to which they are annexed (i) . Thus, where 
 a defendant lessee had covenanted to repair and yield 
 up in repair, furnaces, fire-engines and premises, and 
 there was a power given to the lessor to buy those things 
 on giving notice to the lessee before the expiration of his 
 term, it was held that the defendant had a right to 
 remove whatever was in the nature of a machine, as iron- 
 work, but not anything in the nature of a building or 
 support of a building, although made of iron ; also, that 
 although he might remove brickwork for his purpose, and 
 was not under obligation to restore it in a perfect state, 
 yet he was bound to do as little damage as possible in 
 the removal of the things claimed (j). 
 
 Notwithstanding the express and almost unfair favour 
 continually manifested by the Courts towards Trade Fix- 
 tures since the time of Queen Anne, it is to be remarked 
 that, even in regard to these, a limit has been assigned to 
 the tenant's right to remove them. 
 
 This was notably done in the case of Whitehead v. 
 Bennett (k), in which the Court of Chancery decided that 
 although a tenant might remove machinery, engines, vats, 
 and other utensils put up by him for the purposes of his 
 trade, yet that buildings formed of brick, with foundations 
 of the same material let into the soil, and intended to be 
 used with the same object as the machinery, &c., &c., 
 could not be taken away. 
 
 injury must 
 be done in 
 removing 
 Trade 
 Fixtures. 
 
 Case. 
 
 Tenant not 
 bound to 
 repair any 
 unavoidable 
 injury. 
 
 Limit assigned 
 to tenant's 
 right to 
 remove 
 Fixtures. 
 
 Whitehead v. 
 Bennett. 
 
 (i) Davis t. Jones, 2 B. & AH. 
 165. 
 
 (j) Foley Y. AddenbrooTce, 13 M. 
 & "W". 174 ; 14 L. J' Ex. 169 ; see 
 also Lord Hardwicke's judgment in 
 Lawton v. Lawton, 3 Atk. 13. 
 
 N. B. As to the statutory right of 
 a tenant to remove agricultural and 
 
 trade fixtures, see 14 & 15 Vict. 
 <j. 25 ; and as to those purely agri- 
 cultural, or pastoral, or mixed agri- 
 cultural and pastoral, see 38 & 39 
 Vict. c. 92. ("The Agricultural 
 Holdings Act, 1876.") 
 (k) 27 L. J. Ch. 474. 
 
104 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Tenant's right 
 secured by 
 covenant. 
 
 Tenant cannot 
 under any 
 circumstances 
 sever his 
 Fixtures after 
 the expiration 
 of Ms term, 
 and the land- 
 lord has re- 
 entered. 
 
 When a tenant 
 surrenders his 
 term before 
 the period of 
 its expiration. 
 
 Meaning of 
 "reasonable 
 time after." 
 
 Doctrine of 
 , Ejusdem, 
 Generis. 
 
 The tenant's rigtt to remove his Fixtures may be 
 secured to him by covenant (Z), with the lessot, but if these 
 should be enumerated in the lease, the doctrine of ejusdem 
 generis will apply in the event of a dispute afterwards 
 arising between the parties (m). 
 
 But in the absence of any special contract, no tenant, 
 whether holding by writing or otherwise, can remove 
 Fixtures of any kind after the expiration of his term, or a 
 reasonable time after. If he hold by lease, this rule 
 applies, whether the lease expire by effluxion of time or 
 by re-entry by the landlord on forfeiture (to). 
 
 A question here arises as to how a tenant's right to his 
 Fixtures, assuming them to be removable, is affected by 
 the surrender of his term to his landlord before the exact 
 period of its expiration. If we reason from analogy, it 
 may be answered that his right remains as though he had 
 made no surrender at all, and that a purchaser of Fixtures 
 under these circumstances would be entitled to them, at 
 any rate as against the tenant and others claiming 
 under him, if not as against the landlord. I say, " if 
 we may reason from analogy," because the case (o) 
 in which this principle appears, turned on somewhat 
 peculiar circumstances, which were these : — A., a lessee 
 of certain premises, became insolvent, and a trustee in 
 liquidation was appointed. The trustee took possession 
 of the premises, and in July, 1873, offered the Fixtures 
 
 ij) See'Sumiier v. Bromilow, 34 
 L. J. Q. B. 130. 
 
 (m) Wilson v. Whately, 1 Jo. & 
 H. 436 ; 30 L. J. Ch. 673. The 
 doctrine of ejusdem generis — of the 
 same kind — is, that in a writing, 
 preceding particular words, control 
 suhsequent general ones. Thus, if 
 a covenant in a lease specified cer- 
 tain fixtures, and then went on to 
 say, "and all other fixtures, &o.," 
 the latter would have to he of the 
 same kind as the former, in order to 
 be affected hy the terms of the 
 
 covenant. 
 
 {n) Pugli v. Arton, L. K. 8 Eq. 
 626 ; 38 L. J. Ch. 619. "With this 
 case read Leader v. Smnewood, 5 
 C. B. 346 ; 27 L. J. C. P. 316, as 
 to the effect of intention on the 
 tenant's not to abandon his right to 
 his fixtures. As to what is "a 
 reasonable time after," see the judg- 
 ment of "Willes, J., in Stansfield v. 
 The Mayov, &o. of Portsmouth, 4 
 C. B. 120 ; 27 L. J. C. P. 124. 
 
 (o) Saint v. Pilley, L. E. 10 Ex. 
 137 ; 44 L. J. Ex. 33. 
 
OF PERSONAL PROPEKTY. 105 
 
 thereon for sale by auction. B., the plaintiff, purchased 
 these, but did not remove them until Aug. 15th, by which 
 he violated the terms of one of the conditions of sale. A 
 month afterwards, the trustee, without making any dis- 
 claimer of the Fixtures under the Bankruptcy Act, 1869, 
 sect. 23, wrote to the landlords, surrendering to them 
 the lease of the premises. They accepted the surrender, 
 and then re-let the premises with the Fixtures to C, 
 who thereupon sub-let them to D., the defendant. A 
 fortnight after this, B., the plaintiff, claimed the Fixtures 
 which he had purchased, but D. refused to give them 
 up. At the trial, a verdict was entered for the plaintiff, 
 with leave to the defendant to move to enter it for him. 
 The latter having obtained a rule to show cause, the Court 
 of Exchequer, on the above facts, unanimously discharged 
 it, and held the plaintiff entitled to the Fixtures. 
 
 This judgment, as observed by Cleasby, B., did not, 
 however, decide the question between the trustee and the 
 landlord, nor of course between the latter and the tenant ; 
 but there seems to be no reason why the reasoning em- 
 ployed by the Court in this case should not be adopted 
 for maintaining the tenant's right to his Fixtures when he 
 surrenders his term before its expiration, of course in the 
 absence of fraud. 
 
 The doctrine above stated as to the time for the R^jg ^g ^^ 
 removal of Fixtures, appears applicable to every species removal of 
 of tenancy {p), and likewise to every class of Fixtures, during the 
 whether for trade or otherwise (a), but not to cases " where *®™ J^p'V 
 
 ^^'" _ _ _ cable to all 
 
 from the construction of the property in question, and its Fixtures and 
 
 connexion with the realty, it is not accounted a Fixture at ^jgg 
 
 all, but is considered in law to remain a mere chattel " (r). h^^ tenants 
 
 As to tenants of uncertain interests, as those for life or ?* uncertain 
 
 at will, it is the opinion of Messrs. Amos & Ferard that affected by 
 
 these are not to be governed by the same rule, but that **"* ™'®' 
 they or their representatives will be allowed a reasonable 
 
 (p) Amos & Fer., Fixt. 94. (q) Id. 96. (r) Id, 106. 
 
106 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Tenants for 
 certain periods 
 attempting to 
 remove Fix- 
 tures after 
 their expira- 
 tion are 
 trespassers. 
 
 Outgoing 
 tenant 
 claiming a 
 chattel from 
 incoming 
 tenant after 
 expiration of 
 term. 
 
 Agricultural 
 
 Fixtures 
 
 defined. 
 
 General rule 
 
 concerning 
 
 them. 
 
 Kxamination 
 
 time for the removal of the fixtures after the expiration of 
 their respective estates (s). 
 
 Tenants for certain periods of time, of course, know 
 when their holdings will terminate, and if after their hold- 
 ings are over, they attempt the removal of Fixtures, they 
 will be trespassers [t), for the law presumes that tenants 
 neglecting to avail themselves of their right in this respect, 
 voluntarily relinquish their claims in favour of the land- 
 lord (u), against whom they cannot afterwards be asserted. 
 
 The present writer is not aware whether it has been 
 decided what the mode of obtaining redress would be as 
 between an incoming and outgoing tenant, if the former 
 should withhold from the latter a chattel left on the 
 premises, and which is afterwards claimed by him (x). 
 
 Agricultural Fixtures may be defined as buildings 
 and other accessories, subservient to purposes of agricul- 
 ture as distinguished from those of trade, so constructed 
 as to be completely or partially annexed to the freehold, 
 solely for pui-poses of husbandry, and not connected with 
 any description of trade whatever. 
 
 The idea — although not always the fact — of an intended 
 complete annexation and incorporation with the freehold 
 would seem to be what peculiarly characterizes this class of 
 Fixtures, for the general rule of law concerning them, as 
 enunciated in the leading case (y), is, that they shall not be 
 removable at any time by a tenant, notwithstanding that, 
 if he were to take them away, the premises would be in 
 the exact state in which they were originally, without the 
 erections. 
 
 Messrs. Amos & Ferard {z) very ably criticise the judg- 
 
 (s) Amos & Fer. 107. See Bulwer 
 V. Bulwer, 2 B. & Aid. 470 — a case 
 of EmHements. 
 
 («) Ex parte Quiimj, 1 Atk. 477 
 (Judgment of Lord Hardwicke) ; 
 Dudley v. Ward/ Amb. 113 (Judg- 
 ment of same). 
 
 (u) J/yde V. Sussell, 1 B. & Ad. 
 394 (Judgment of Lord Tenterden, 
 
 C. J.). 
 
 {x) See Wilde v. Waters, 16 C. B. 
 637 ; 24 L. J. 0. P. 193. 
 
 {y) Judgment of Lord Ellen- 
 borough, 0. J., in Elvies r. Mawe, 
 2 Sm. L. C. 
 
 (z) Read pp. 50 — 63 of their work. 
 But see also Grady on Fixt. § 3. 
 
OF PERSONAL PROPERTY. 107 
 
 ment,with its consequences, of Lord Ellenborongh. in Elwes of Ehms v. 
 V. Mavje, and very iustly so, for certainly its doctrine ^"'^^' *•>« 
 
 '•'■'.•' •' leading case on 
 
 seems to bear oppressively upon the tenant farmer, who. Agricultural 
 although not a trader within the technical and narrow '■^^°^^- 
 sense of the term (a), yet carries on a business which 
 would seem to be as much a " pillar of the state " as ordi- 
 nary trade, and which Lord Kenyon, in rather overstrained 
 terms, styled the pillar of the state." 
 
 The glaring and unjust absurdity above alluded to, at interference in 
 length attracted the notice of the Legislature, and in 1851 1851 of the 
 a statute (6) was passed, which enacted among other things, on behalf of 
 that any agricultural tenant who shall erect, at his own cost, agncultui-al 
 and with the oonsent in writing of his landlord, any farm 
 buildings, detached or otherwise, or shall put up any engine 
 or machinery, either for purposes of trade or agricul- 
 ture, and whether these be built on, or permanently fixed to, 
 the soil, may remove the same, so <*s he do not injure the 
 land, and provided the landlord do not elect to take the 
 same. If he elects to take them, the tenant must furnish 
 him with a written notice a month previous to the pro- 
 posed removal, and the Fixtures, if taken, the value of 
 them is to be settled by two referees, or by an umpire, 
 if required ,(c). It will thus be seen that, this Act refers 
 both to agricultural tenancies, and also to those in which 
 ' agiiculture is combined with trade. 
 
 Again, and very recently. Parliament has taken another Agricultural 
 step in favour of the agricultural tenant in this respect, ?°'^'°ss Act, 
 by an Act which came into operation on the 14th of 
 February of the present year, 1876 (d). By the first clause 
 of sect. 53 of this statute, and which cannot be com- 
 
 (a) A farmer, technically speaking, Agricultural Holdings (England) 
 
 is not a trader. See S. v. Inhabitants Act, 1875, " which has reference 
 
 of Whitnash, 7 B. & C. 601. Judg- only to tenancies of two acres and 
 
 ments : 32 & 33 Vict. c. 71 (" The upwards, and which are wholly 
 
 Bankruptcy Act, 1869," soh. 1.) agricultural, wholly pastoral, or 
 
 (6) 14 & 15 Vict. c. 25. those in part agricultural, and as to 
 
 (c) .Sect. 3. the rest pastoral (sect. 58). 
 
 [d) 38 & 39 Vict. c. 92, "The 
 
108 
 
 WILLS OF PERSONAL PKOPEETY. 
 
 Agriealtural 
 Fixtures now 
 removable by 
 a tenant. 
 
 Steam Engine. 
 
 Modifications 
 of the tenant's 
 right under 
 the Act. 
 
 Payment of 
 rent a condi- 
 tion precedent 
 to removing a 
 Fixture. 
 
 No damage to 
 be done to 
 buildings. 
 
 Damage done 
 muFt be paid 
 for by tenant. 
 
 Tenant must 
 give a month's 
 notice in 
 writing to 
 landlord. 
 
 I/andlord's 
 option as to 
 purchasing 
 his tenant's 
 Fixtures. 
 
 mended as a model of luminous diction, it appears to be 
 enacted that there are three sorts of Agricultural Fixtures 
 which may be removed by a tenant, in the nature of 
 engines, machines, or other Fixtures which he annexes to 
 his holding, namely : — 
 
 (1.) Those for which he is not entitled to compensa- 
 tion by this statute or otherwise ; 
 (2.) Fixtures not erected by him in pursuance of some 
 
 obligation to erect such ; 
 (3.) Fixtures not erected by the tenant in substitu- 
 tion of any previously belonging to the land- 
 lord at the time of the demise. 
 " Nothing in this section shall apply to a stea/m engine 
 erected by the tenant, if before erecting it, the tenant has 
 not given to the landlord notice in writing of his intention 
 to do so, or if the landlord, by notice in writing given to 
 the tenant, has objected to the erection thereof." 
 
 The tenant's right is also modified by five provisoes, 
 namely, — ■ 
 
 {1.) Before the removal of any Fixture he shall pay 
 all rent owing by him, and shall perform or 
 satisfy all other his obligations (e) to the land- 
 lord in respect of his holding. 
 (2.) In the removal of any Fixture, the tenant shall 
 not do any avoidable damage to any building 
 or part of a building. 
 (3.) If any such damage shall have been done, the 
 
 tenant shall immediately make it good. 
 (4.) The tenant must give to the landlord one month's 
 notice in writing of his intention to remove 
 any Fixture. 
 (5.) At any time before the expiration of this notice, 
 the landlord by notice in writing to the tenant 
 may elect to purchase any Fixture comprised 
 
 («) ■ As to a tenant's obligatiou to 
 restore or replace the original 
 tixtiires, at any rate those of a 
 
 trade or ornamental character, see 
 Martyr v. Bradley, 9 Bing. 24 ; and 
 Sunderland v. NewUm, 3 Sim. 450. 
 
OF PERSONAL PROPERTY. 109 
 
 in the tenant's notice, and such Fixture must 
 be left by the tenant, and shall become the 
 property of the landlord, who must pay what 
 its fair value may be to any incoming tenant, 
 and any difference between the parties shall 
 be settled by a reference under the Act, but 
 without appeal. 
 It will be seen that this statute defines and enlarges Observations 
 more fully than the preceding one, the respective rights '"'*'* "*■ 
 of landlord and tenant in regard to the removal of Agri- 
 cultural Fixtures, and therefore still further restricts the 
 absolute rule of the Common Law declared in Elwes v. 
 Mawe. 
 
 Before the 14 & 15 Vict. c. 25, a purely agricultural 
 tenant, under all circumstances, was obliged to leave his 
 Fixtures for his landlord without any compensation ; now, 
 as we have seen, he may, if he has previously obtained 
 the consent of his landlord for their erection, remove any 
 that he has annexed to his holding, and for which he could 
 not formerly, or can by the latter Acts, claim compensation. 
 
 The case of El/wes v. Mawe is only impaired by these Elwu v. Mawe 
 statutes to the extent above indicated, and it will therefore ^ity on 
 still stand as an authority, so far as it shows what were Agricultural 
 
 1 -n- • 1 1 1 1 J Fixtures. 
 
 the fixtures that a mere agricultural tenant could not 
 remove, but these are the very ones that he may now, by 
 virtue of the two Acts of Parliament, either take away, or be 
 paid for by his landlord, provided that his previous consent 
 for their annexation in writing shall'have been obtained. 
 
 Thus, the " unqualified rule laid down in Elwes v. Mawe, Altered 
 which excluded agricultural tenants from participating in ^"griouitraal 
 the advantages possessed by tenants in trade in regard to tenants in 
 Fixtures," has been (/), as it were, accessory to the require- right to remove 
 ments of justice and common sense. The old rule has Fixtures. 
 been qualified and enlarged in favour of agricultural 
 tenants, while the distinction upon which it was founded, , 
 
 (/) Amos & Fer., Fixt. 56. 
 
no 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Domestic and 
 
 ornamental 
 
 Fixtures. 
 
 'Wtat tilings- 
 may be 
 considered 
 Domestic 
 Fixtures. 
 
 Ornamental 
 Fixtures. 
 
 General^ role 
 of law con- 
 cerning tliem. 
 
 may now be looked upon as being to a great extent a thing 
 of the past, nor need any custom hereafter be cited to 
 support a tenant's right in this respect. 
 
 Domestic Fixtures or Ornamental Fixtures are 
 those which a tenant puts up for general pui-poses of con- 
 venience and utility or mere decoration. In favour of 
 Fixtures of this and the ornamental class, like those 
 appertaining to trade, exceptions were even before Poole's 
 case (g), introduced (h), notwithstanding Lord Coke's state- 
 ments of the law to the contrary (i), for it was found that 
 the state of refinement to which the country was ar- 
 riving, in matters of domestie furniture and decoration, 
 rendered the rules of the feudal law incompatible with 
 the general convenience of society " {i}. 
 
 Under the head of Domestic Fixtures may be included 
 such things as furnaces, iron backs to chimneys, benches, 
 doors, windows, grates, stoves, cooking-coppers, mash-tubs, 
 water-tubs, blinds, pumps, and the like, annexed or affixed 
 to the house either by the tenant or the reversioner. 
 
 Under that of Ornamental Fixtures, we may mention 
 articles like book-shelves, as hangings, pictures, pier- 
 glasses, chimney-glasses, tapestry, wainscot fixed by screws^ 
 cornices, verandahs, conservatories, pineries, and so forth. 
 
 The general rule of law respecting all these is, that 
 " where a lessee, having annexed a personal chattel to the 
 freehold during his term, afterwards takes it away, it is 
 waste . . . , Matters of ornament may or may not be re- 
 movable, and whether they are so or not must depend on 
 the particular circumstances of each case" (k). Into these 
 it is not within the scope of the present treatise to enter ; 
 accordingly, it must here suffice to present the reader 
 
 (g) 1 Salk. 368 (1704). 
 
 {k) Squier v. Mayer, 2 Frem. 
 249 (1701). Thia case was between 
 the heir and exeeutor of the owner, 
 not between landlord and tenant. 
 
 {%) Co, Litt. 63 a ; 4 Co. Rep. 
 
 64 (HerlaJcenden's ease). 
 
 {k) BiuMamd v. ButterfieU, 2 
 Bred. & Bing. 54 ; 4 B. Moore, 
 440. Judgment of Dallas, C. J. 
 (1820). This case is considered the 
 leading one on the present subject. 
 
OF PERSONAL PROPERTY. Ill 
 
 with the authorities that may profitably be consulted as 
 to various Fixtui'es enumerated under this head (l). 
 
 It may, however, be stated that the following in- Matters to be 
 quiries have always been considered material in cases c<"isidered 
 
 , . . . ui questions 
 
 concerning domestic or ornamental Fixtures, namely : — which arise 
 (1.) Whether the article was one of domestic con- Domesdo and 
 
 venience or for ornament. Ornamental 
 
 (2.) Whether it was erected by the tenant, 
 (3.) Whether it could be moved entire. 
 (4.) What are the mutual relations of the parties who 
 claim such Fixtures. 
 It may be said generally of the things we have enume- Criterion 
 rated, that if they do not when annexed form part of the ^^avahSity 
 building to which they are affixed, then they may be 
 removed by the tenant; if, on the other hand, they do 
 form part of the building, then they cannot be re- 
 moved (m). This, of course, resolves itself into a matter 
 of evidence, and the impossibility of laying down any 
 general rule on the subject suitable to evei-y set of cir- 
 cumstances is obvious. 
 
 " In respect of all these classes of Fixtures, namely-, the Mode of 
 Mixed Agricultural, the Trade Proper, and the Domestic ?°i«™tion 
 
 ° - ' r ' immaterial. 
 
 or Ornatnental classes, the manner or the measure of the 
 annexation is perfectly immaterial in every case as between 
 landlord and tenant " (■n.), that is so far as regards the right 
 to removal ; not, of course, as regar(fc the tiTtie of removing 
 them. The above remark, however, with all deference, 
 seems of somewhat too sweeping a character to be adopted 
 literally in practice. 
 
 The foregoing is a brief and imperfect outline of Fix- Treatment of 
 tures when considered as to their nature. The mode of ' ® ™ •'^°*' 
 treating the subject here adopted, although deprecated by 
 
 (T) Amos & Per., Eixt. 71 — 93 ; life and remainderman. 
 Mr. Archibald Brown's Law of (») Brown on Fixtures, § 89. But 
 
 Fixtures, ch. 3. Grady on Fixt. § 4. see the judgment of Blackburn, J., 
 
 (m) D'EynamrtY. Gregory, L. E. in Chidley (App.) v. Chv/rchwardetis 
 
 3 Eq. 382 ; 36 L. J. Ch. 107. This of West Ham, 32 L. T. Eep. 486, 
 
 was a case as between tenant for as to the intention of annexation. 
 
112 
 
 WILLS OF PERSONAL PROPERTY. 
 
 The real 
 questions on 
 Fixtures 
 within the 
 scope of the 
 present work. 
 
 Postponement 
 of the subject. 
 
 The question 
 is— What 
 Fixtures may 
 a man success- 
 fully leave by 
 Will? 
 
 Heir-looms. 
 
 The learning 
 on this sub- 
 ject somewhat 
 confused. 
 
 some writers, is probably one better suited than any others 
 to the purpose for which the present subject has been 
 referred to. This is to furnish the reader with simply a 
 general view of the rules of law as to Fixtures, and so to 
 place him in a position to better comprehend the nature 
 of those questions, a discussion of which strictly falls 
 within the compass of a treatise on Wills. 
 
 Such are those arising between the persons mentioned 
 in the first of our two classifications, namely, — 
 
 (B.) Between the executor or administrator of a 
 
 tenant in fee simple, his heir or devisee ; 
 (C.) Between the executor or administrator of a 
 tenant in tail, his heir, the reversioner, or re- 
 mainderman of the estate ; 
 (D.) Between the executor or admiuistrator of a tenant 
 for life, and the reversioner, or remainderman. 
 Concerning the claims of these parties to Fixtures, it 
 was thought advisable to make no mention of them in 
 the preceding pages, and the present writer is of opinion 
 that their consideration may be still further postponed, 
 and that it may more appropriately be introduced into 
 the chapter concerning executors. Our purpose is to 
 inquire what things, amongst those which we have just 
 been speaking of, a man may successfully bequeath by his 
 Will, in other words what his executor may take as 
 against certain other ((persons, or what the administrator 
 of his estate is entitled to claim in case of an intestacy. 
 As before stated, we defer the consideration of these ques- 
 tions to another chapter, and now pass on to notice a 
 subject closely related to, but distinguishable from, Fix- 
 tures, that of Heir-looms (o). 
 
 The learning which concerns these, as in the case of 
 the former, seems to be of a somewhat confused cha- 
 racter. The learned antiquary, Sir Henry Spelman, tells us 
 in his Olossariwm ArchoBologicv/m,(p),-pn}Ais]ied in the 
 
 (o) Toller includes Fixtures under 
 heir-looms, bk. 2, oh. 4. 
 
 {p) See under Heir-looms. 
 
OF PERSONAL PROPERTY. 113 
 
 16th century, that an Heir-loom signifies Any very strong Sir H. Spei- 
 article which cannot be severed from the fabric of a house, ^^li^^' 
 
 Lord Coke begs his readers to note that, "in some Heir-loom, 
 places, chattels are Heir-loomes, as the best bed, table, pot, 
 pan, cart, and other dead chattels moveable may go to the 
 heire . . . but the Heire-loome is due by custome and not 
 by the Common Law " (g). 
 
 Blackstone states that, " an Heir-loom, or implement of Biackstone's 
 furniture, which by custom descends to the heir, together description, 
 with a house, is neither land nor tenement, but a mere 
 moveable ; yet, being inheritable, is comprised under the 
 general word hereditament ..." (r). 
 
 The same writer also says that, " they are generally such 
 things as cannot be taken away without damaging or dis- 
 membering the freehold ; otherwise, the general rule is 
 that no chattel interest whatsoever shall go to the heir, 
 notwithstanding it be expressly limited to a man and his 
 heirs, but still vests in the executor " (s). 
 
 Again, he speaks of them as " mere chattels," which, 
 however, " cannot be devised away from the heir " (s). 
 
 The word loom, used in this compound term, signifies Derivation of 
 in the Saxon language a limb or member (f) ; conse- 
 quently, Heir-loom, simply means a limb or member of an 
 heir's property, that is to say, his inheritance, for which 
 reason an Heir-loom has also been called principaliv/m or 
 hoBreditarium (u). 
 
 But although an Heir-loom is considered as so annexed what is 
 to an inheritance as to be a part thereof, yet this may ™^^twnto 
 exist only in contemplation of law, for deer in a park, the freehold of 
 fishes in a pond, rabbits in a warren, doves in a dove- 
 house, charters, court-rolls, title-deeds, and other evidences 
 of the right to land, together with the boxes or chests 
 containing them, though in themselves but chattels, are 
 held to be Heir-looms (x), because they — especially the 
 
 (g) Co. Litt. 18b. is the Saxon for heir; leoma for 
 
 (r) 2 Black. Comm. 17. loom. 
 
 (s) Id. 427, 428. (m) 6 Co. Litt. 18 b. 
 
 (t) 2 Black. Comm. 427. Seier ~ (x) 1 Cru. Dig. 59. 
 
114 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Definition 
 of the word 
 lemarked 
 upon. 
 
 The right to 
 Heir-looms is 
 dependent on 
 special custom. 
 
 Lord Coke's 
 opinion as to 
 the force of 
 custom in this 
 respect. 
 
 Inheritable 
 quality of 
 Heir-looms. 
 
 latter things — would be necessary to the proper enjoy- 
 ment of the estate to which they are annexed. 
 
 This being so, Spelman's definition of an Heir-loom is 
 not to be relied on now ; nor is that ruling of Lord Holt, 
 C. J., at Nisi Prius, in which he says that a jewel cannot 
 be an Heir-loom, but only things ponderous, as carts, 
 tables, &c. (y) ; for the Crown jewels are Heir-looms (z) 
 which the Sovereign has no power to bequeath from his suc- 
 cessor ; moreover, the things enumerated in our last para- 
 graph, are certainly not of a very " ponderous " character. 
 
 The right to real Heir-looms depends entirely upon 
 special custom, which, when relied on, must be strictly 
 proved; and out of the materials already before the 
 reader, we may extract the following definition of an Heir- 
 loom in its strict and proper sense, namely : a "loose per- 
 sonal chattel, such as would ordinarily, and but for the 
 particular custom, go to the personal representative of the 
 deceased proprietor " (a). 
 
 If, then, a man be seised of a freehold house, and 
 possessed of divers Heir-looms that by custom have gone 
 with the house, and by Will bequeaths away these things, 
 the bequest is void, because, after the ancestor's death, 
 they would be vested in the heir by the custom, which 
 the law prefers in this case to the Will (6). 
 
 Hitherto we have spoken of Heir-looms entirely ac- 
 cording to their legal signification, that is, as inheritable 
 chattel members of an estate, which itself, in the absence 
 of a Will, descends to the heir. This inheritable quality 
 constitutes the peculiarity of an Heir-loom, properly so 
 called ; since, as before stated, by the general rule of the 
 Common Law, a man cannot be heir to goods and chattels, 
 for hceres dicitur ab hcereditate, and these things are not 
 wiheritahle (c). 
 
 (y) Petre v. Menage, 1 Lord 
 Eaymond, 728. 
 (ss) Co. Litt. 18 b. 
 {a) Amos. & Fer. Kxt. 192. 
 (b) Co. Litt. 185 b; Pusey v. 
 
 Pusey, 1 Vem, 273 ; and see the 
 commencement of the judgment 
 of Lord Macclesfield, C, in Tip- 
 ping T. Tipping, 1 P. Wms. 730. 
 (c) Co. Lit. 8 d. But see Mr. 
 
OF PERSONAL PEOPERTY, 115 
 
 The reader will not be surprised, after what has been Heir-looms, 
 said, to hear, in the words of Mr. Joshua Williams, that cS'not 
 " Heir-looms, strictly so called, are now very seldom to be often met 
 met with" (d). The reason of this is, that questions con- 
 cerning these things at the present day, would, for the 
 most part, be governed by the rules of law which regulate 
 Fixtures as between heir and executor. What we term 
 Fixtures appear in the old books to be confusedly mixed 
 up with Heir-looms, concerning which the main idea was 
 their physical or supposed firm annexation to, and incor- 
 poration with, the freehold, their inseverable character in 
 regard thereto (e), and their strictly heritable quality. 
 
 Thus much of Heir-looms proper. We now come to Chattds in 
 
 . . T . Til '™ nature of 
 
 the consideration of certain things, popularly but eiTo- Sdr-ioom 
 neously, so styled, such as pictures, books, plate, and so designation 
 forth. These, when correctly designated, should be styled of what are 
 Chattels in the Nature of Heir-looms, although of llji^ Heir- 
 course when termed simply Heir-looms, their real meaning looms, 
 is well understood by lawyers. 
 
 Chattels of the kind mentioned above, may by Will or Such may 
 settlement be made to devolve like Heir-looms ; indeed, subjects of 
 " it was long ago held that they might be bequeathed or y™* ^®*' 
 limited in strict settlement (/) to one for life, with re- 
 mainder to others in. tail, although they would be con- 
 formable to the rules of law concerning executory trusts 
 and devises, and therefore not be inalienable for a longer 
 time than lives in being, and twenty-one years after (g). 
 But the general intent of the instrument creating the 
 entail, together with its transmission clause, will have to 
 be considered, assuming of course that the limitations are 
 in themselves, valid. 
 
 Butler's note (7) to Co. Litt. 18 b, an estate is settled on a parent for 
 
 as to how personalty may be life, with remainder to his first and 
 
 limited in strict settlement. other sons successively in tail. 
 
 (0) Wms. P. P. 12. (g) See Mr. Butler's note (7) in 
 
 (e) 12 Mod. Rep. 519, 520 (1692). his edition of Co. Litt. 18 b, and 
 
 {/) " Strict settlement" iswhere the cases there cited. Feame, Cont. 
 
 I 2 
 
116 
 
 WILLS OP PERSONAL PROPERTY. 
 
 There need be 
 no limitation of 
 realty to 
 guide such 
 limitations of 
 peiBonalty. 
 
 The general 
 principle of 
 law that 
 personalty 
 cannot be 
 entailed, 
 considered. 
 
 How the 
 permitted 
 infraction of 
 the rule is 
 restricted. 
 
 niustrative 
 case. 
 
 It seems to be implied from the judgment of Vice- 
 Chancellor Wood, in Shelley v. Shelley, cited on the pre- 
 ceding page (g), that there is no valid objection to the 
 settling of chattels to devolve as Heir-looms, although 
 there may be no corresponding limitations of realty to 
 guide those of the personalty ; and even assuming that 
 any such objection does exist, it would not at any rate 
 apply to the case of an executory trust of family jewels. 
 
 The reader is here reminded of one of the rules of law 
 concerning personalty, namely, that it is, in general, not 
 capable, like realty, of being entailed, so that if I directly 
 bequeath a chattel to A. and the heirs of his body, A. 
 takes the thing absolutely, immediately on my death (h), 
 just as if I made the gift to him simply, or to him and his 
 heirs (i). Accordingly, the power to limit personalty, in 
 the manner in which we see it can be limited as regards 
 chattels in the nature of Heir-looms, is so completely an 
 exception to the ordinary doctrine, as almost to be con- 
 sidered in the light of a distinct rule. As with all 
 permitted infractions of general rules of law, the exercise 
 of this one is kept strictly within the bounds which 
 have been assigned it, and if attempts be made to over- 
 step these, they wiU fail. 
 
 Thus, where a testator bequeathed to his son plate, 
 &c., to be held by him as Heir-looms, and directed his 
 executors to make an inventory of the things in question, 
 and then by a codicil bequeathed them to his executor in 
 order that they might be held as Heir-looms in his family, 
 this bequest was held to be direct, and of course the in- 
 tention of the testator was defeated, since by the general 
 
 Rem. ch. 4, sect. 8, and "Wms. E. 
 P. pt. 2, ch. 3, as to Executory 
 Interests. See further on this sub- 
 ject, Potis v. Potts, 1 H. L. Gas. 
 671 ; SecursdaU v. Cv/rzon, 1 Jo. & 
 H. 40 ; 29 L. J. Oh. 249 ; ITar- 
 rmgton v. Harrington, L. R. 3 Ch. 
 App. 564 ; 40 L. J. Ch. (H. L.) 
 
 716 ; Shelley v. Shelley, L. R. 6 
 Eq. 540 ; 37 L. J. Ch. 357 (Judg- 
 ment of "Wood, V. C). 
 
 ig) See previous note. 
 
 (h) Voncaster v. Boncaster, 2 K. 
 & Jo. 26. 
 
 (i) Byng v. Strafford, 5 Beav. 
 558 ; 12 L. J. Ch. 169. 
 
OF PERSONAL PROPJEKTY. 117 
 
 principle of law referred to, they became vested absolutely 
 in the first taker of them (k). 
 
 To avert the operation of the general rule in these What is 
 cases, it is necessary not only to settle the property by prevenTthe" 
 deed or WUl, upon trustees in trust, to permit the chattels operation of 
 to go as directed by the settlor or testator, but also to principle of 
 insert a clause specially providing against the absolute '*''• 
 vesting of them in the first taker. 
 
 Suppose a person desirous of settling certain chattels as Lord West- 
 Heir-looms were to say : " I give and bequeath to trustees la's m" ^' 
 my plate, &c., &c., in trust for the person or persons who J^rrington v. 
 for the time being shall, under, or by virtue of, or under the 
 limitations contained in any settlement of my mansion- 
 house at X., and the estates of Y. settled herewith, be in 
 actual possession of the same mansion-house and estate, to 
 the intent that all and singular such personal property may 
 be deemed Heir-looms, to go along with, and for ever be 
 used with the same mansion-house and estate, so far as 
 the rules of law and equity will permit." Such words 
 will not in the present state of the law create an executory 
 trust (Q, but are by themselves words of direct and com- 
 plete gift, and only avail to transmit the enjoyment of 
 the chattels up to the limit of the time allowed by the law 
 for postponing the absolute vesting of personalty, namely, 
 a life or lives in being, and twenty-one years after (m). 
 
 " To meet this diflSculty," that is, the severance of the insertion of 
 chattels from the settled real estates, " it has been usual to ^^nS^ln 
 annex to the direction, that the Heir-looms shall go along a wm or Set- 
 with the settled real estates, a condition that the Heir- entailed chat- 
 looms shaU not vest absolutely in any tenant in tail, *'Jg't'^^"„!"'* 
 unless such tenant in tail shall attain the age of twenty- luteiy in first 
 one years, or dying under that age shall have issue in- ^ ^''' 
 heritable under the settlement " (m). 
 
 Without this condition, the chattels will vest in the Consequence of 
 
 omitting snoh 
 (]c) BiyiMlaiid v Morgan, 5 Hare, Westbury, in Harrington v. Bar- condition. 
 
 663 ; 17 L. J. Ch. 339 ; afltoned, rington, is much to be regretted. 
 
 18 L. J. Ch. 78. (m) Per Lord Westbury in the 
 
 (l) Wtich, as observed by Lord same case. 
 
118 
 
 WILLS OF PERSONAL PEOPBRTY. 
 
 No diflference 
 between the 
 construction 
 of executory 
 trusts created 
 by Wm and 
 those by 
 deed. 
 
 The power of 
 creating future 
 interests in 
 personalty is 
 not confined 
 to chattels in 
 the nature of 
 Heir-looms. 
 Origin of the 
 doctrine con- 
 travening the 
 Common Law 
 rule. 
 
 Some of the 
 chattels in the 
 nature of 
 Heir-looms 
 descend to the 
 heir as of 
 
 first tenant in tail at Ms birth, and, of course, belonging 
 to his personal representative, they wUl be severed from 
 the realty, and the settlor's intention is defeated. 
 
 There is no difference between the construction to be 
 put on an executory trust created by marriage articles, 
 and on one created by a Will, except so far as the former is 
 more emphatically the means of ascertaining the intention 
 of those who created the trust (n). 
 
 This power of creating future interests in chattels is not 
 confined to such as we have been considering, namely, 
 those in the TiMwre of Heir-looms, but it may be exercised 
 over aU personal estate by means of the doctrine of 
 executory interests. 
 
 The ulterior limitations in question were void by the 
 general rule of the Common Law, just referred to ; but a 
 distinction appears to have been early taken between the 
 bequest of a chattel itself and the use of it, for the latter 
 might have been limited over to any person other than the 
 first taker. The distinction in this respect between an article 
 q,nd its use has quite disappeared, and it is now settled 
 that any personal property may be limited over in a WiU, 
 or by way of executory trust, that is, where the bequest, 
 trust, or agreement is merely directory and incomplete, 
 and requires the assistance of the Chancery Division of 
 the High Court of Justice to give it effect (o). 
 
 Some of these chattels vn the nature of Heir-looms 
 will, it appears, descend to the heir ; as for instance, a 
 coUar of S.' S. ( p) belonging to his ancestor ; ancient por- 
 traits of former owners of the estate ; a monument in a 
 
 («) West V. HoViMsdale, L. E 4. 
 E. & I. App. 543 ; 39 L. J. Oh. 
 (H. L.) 505. This was the case of 
 an entail to correspond with the 
 limitations in a patent creating a 
 peerage. "The distinction be- 
 tween marriage articles and an exe- 
 cutory trust under a "Will is new to 
 me." Per Lord Eldon, C, in 
 Lincoln v. Newcastle, 12 Ves. 218. 
 
 (o) Eearne, Cont. Rem. (Exec^ 
 
 Devises) ch. 1. ; and see Mr. Josiah 
 Smith on Executory Interests in 
 his edition of Fearne. Also see 2 
 Eop. Leg. ch, 22, sect. 4. 
 
 {p) St. Simplicius. See a full ac- 
 count of the collar of S. S. in "The 
 History and Antiquities of the Four 
 Inns of Court, &c., &c.," written, I 
 believe, by John Rayner, and pub- 
 lished in 1780. 
 
OF PERSONAL PROPERTY. 119 
 
 church, with any appendages thereto (q) ; and it seems 
 
 that charters, title-deeds, &c., relating to the inheritance, 
 
 are more properly included under the term chattels in 
 
 the nature of Heir-looms, since they do not go to the heir 
 
 under all circumstances. Thus, if the title-deeds of an Pawned or 
 
 estate are pawned or pledged for money lent, that is to deeds! 
 
 say, if they form the security for an equitable mortgage, 
 
 they are but chattels in the hands of the mortgagee, and 
 
 will at his decease go to his personal representative (r). 
 
 Lastly, we may remark that by the special custom of Special custom 
 some places, carriages, and also various articles of. house- places^ 
 hold furniture, and implements, may be heir-looms ; but 
 such custom requires to be strictly proved (s). 
 
 Returning to Emblements, the nature of which has Emblements 
 already been alluded to at page 83, we may now enunciate ^faw^con- 
 the broad doctrine of law concerning these, which is that cemingthem. 
 " Every one who has an uncertain estate or interest 
 in land, if his estate determines by the act of God 
 before severance of the crops thereon, shall have the 
 emblements, or they shall go to his executor or adminis- 
 trator " (t). "Jhis being so, as a general rule, the personal Emblements 
 representatives of a tenant for life, or for years, si to the personal 
 tarnidiv, vixerit, who has, while living, sowed the land, representative. 
 are entitled to the crops, by reason of the uncertain 
 interest which the tenants in question respectively pos- 
 sessed in their holdings (v). 
 
 The principle proceeded upon by the law, in thus The principle 
 giving emblements — which, although annexed to the soil, stated to be 
 
 (q) 2 Black. Comm. 429. referred to, have been such as con- 
 
 (r) 3 Bao. Abr. Exors. and cem Vas freehold. 
 Admors. H. 3. See, on this sub- (s) 2 Black. Comm. 428. 
 ject, Russell v. Russell, 1 L. C. (t) 1 Wms. Exors. pt. 2, hk. 2, 
 Eq. ; Fenvnck v. Potts, 8 De G. eh. 2, § 2, p. 715, citing Comyn's 
 M. & G. 506. It should be ob- Dig. Biens (G. 2). 
 served,' that such documents as [u) Ibid. , where the case is con- 
 relate merely to personalty, as sidered of an executor or adminis- 
 leases, goods, chattels, or debts, go trator not being able to claim 
 to the executors as a matter of emblements, 
 course. The deeds, &c., hitherto 
 
120 
 
 WILLS OF PERSONAL PROPERTY. 
 
 he encourage- 
 ment to a 
 tenant to cul- 
 tivate his land. 
 
 Emblements 
 must be the 
 result of the 
 tenant's 
 annual labour. 
 
 One crop 
 only. 
 
 Property in 
 emblements 
 is a distinct 
 one in law. 
 
 DoTisee pre- 
 ferred to heir. 
 
 ai-e accounted as only chattels — ^was well explained by 
 Lord Denman, C. J., in the case of Graves v. Wdd (x), in 
 r833, and also learnedly discussed arguendo by two of 
 the ablest counsel then at the bar. " That principle is," 
 said the Lord Chief Justice, " that the tenant should be 
 encouraged to cultivate, by being sure of receiving the 
 fruits of his labour ; but both sides were agreed that the 
 rule did not extend to give the tenant all the fruits of 
 his labour, or the right might be extended in that case to 
 things of a more permanent nature, as trees, or to more 
 crops than one .... It was therefore admitted by each 
 that the tenant could be entitled to that species of pro- 
 duct only which grows by the industry and manurance of 
 man, and to one crop only of that product." 
 
 The correct rule is, that a tenant's personal representa- 
 tive is entitled to a crop of that species only which ordi- 
 narily repays the labour by -which it is produced, within 
 the yeai- in which that labour is bestowed. 
 
 We thus see that the law, with a view to encourage 
 agriculture, has created a property in emblements dis- 
 tinct from that of the soil, and it would seem to follow 
 from this, that he alone who sows, or his representatives, 
 shall necessarily have the benefit of reaping ; yet this pro- 
 position, in connection with the present subject, though 
 almost universally true, nevertheless admits of the follow- 
 ing exception. 
 
 Suppose A., a tenant in fee, to sow his lands, devise 
 them to B., and then die before the crops are severed ; 
 also, before the latter event takes place, B. dies too. In 
 such case, it might be thought at first sight, that A,'s heir 
 or executor would have the emblements ; but it has been 
 held that B.'s executor would take them {y), because he 
 stands in the place of the executor by the direct terms of 
 the devise (2:). 
 
 (x) 5 B. & Ad. 105 ; 2 Nev. & 
 Man. 725 ; 2 L. J. K. B. 176 
 see also Co. Litt. 55 a. b. 
 
 (y) Co. Litt. 55 b, note 2, in 
 Hargrave ajid Butler's edition, 
 (s) Toller, Exors. 203i 
 
OF PERSONAL PROPERTY, 121 
 
 It is not, however, " easy to account for this distinction, Obaourity of 
 which gives growing corn to the devisee, but denies it to pr^erence* * 
 the heir (a) ; " but it seems to be founded on a principle, 
 before alluded to, that a devisee of lands is entitled to all 
 those chattel interests which in the absence of a devise 
 or specific bequest, belong to the heir (b). 
 
 Again, if A. seised in fee sows the lands, devises them to Another 
 B. for life, remainder to C. in fee, and dies before sever- 
 ance, the executor of A. shall not have the emblements ; 
 and if B. dies before the severance, they shall go not to 
 his executor, but to him in remainder (c). 
 
 Thus, it is seen that a devisee is, in regard to emble- 
 ments, generally in a better position than the heir of 
 him who sowed the land. 
 
 Not only does the law give these emblements to the Tenant pwr 
 
 p f T p 1 1 • ■ autre vie 
 
 executor oi a tenant tor life, where his estate determines entitled to his 
 by some act not his own, — or, technically speaking, by the emblements, 
 act of God, or of the law, — but also to a tenant pur autre 
 vie, where cestui que vie dies after the land is sown, and 
 before the crop is reaped. But in all cases, the determina- Cesser of 
 tion of the tenancy must be caused by some circumstance be by an act 
 not the tenant's own act, for if he himself cause the tenancy °^ ^*^- 
 to cease, he will not be entitled to the emblements {d). the^terimt °^ 
 
 Thus, if a woman who is to hold an estate only during Example of 
 widowhood marries, she commits an act which causes a ti^isruie. 
 forfeiture of her estate ; and she therefore loses her right 
 to the emblements thereof (e). 
 
 Also, if a person hold lands for a certain fixed Tenancy for a 
 period, say for ten years ; as he knows exactly when his 
 
 (fl) Co. Litt. 55 b, note 2, iii is the relation of the parties claim- 
 
 Hargrave and Butler's edition. ing emblements so far as the nn- 
 
 (J) See 2 Black. Comm. 428 ; certainty of interest is concerned, 
 
 also, Went. Off. Exor. 146, n. because the rule of law is general, 
 
 (c) Co. Litt. ut supra. that where this exists, the emble- 
 
 (d) 2 Black. Comm. 123 ; Damis ments form part of the deceased's 
 V. Eyton, 1 Bing. 154 ; 9 L. J. C. P. personal estate, unless the rule in 
 44, a case of lessor and lessee. It the text has been violated, 
 makes no diiference, however, what (e) Id. 124. 
 
122 
 
 WILLS OF PEESOKAL PROPERTY. 
 
 Lease depen- 
 dent on some 
 uncertain 
 eTent. 
 
 Emblements 
 
 ■ how affected 
 
 by 14 & 15 
 
 Viet. c. 25. 
 
 Not affected 
 by Agricul- 
 tural Holdings 
 Act, 1875. 
 
 Emblements 
 regarded in 
 law as chattels 
 for other 
 purposes. 
 
 tenancy will expire, if in its last year he sows his land 
 and is unable to reap the crop before the expiration of his 
 term, the landlord will take it, unless there exist some 
 special contract or a custom to the contrary (e). 
 
 If, however, the lease depends upon an uncertain event, 
 as the lessor's death, then of course the rule before stated 
 applies, and the tenant will have his emblements (e). 
 
 Claims to emblements are now within the opera- 
 tion of the statute 14 & 15 Vict. c. 25 (/), which 
 enacts in its first section, that, where a lease or tenancy of 
 any farm or lands (held under a person having a life 
 interest only) shall determine by the death of the land- 
 lord, the tenant, instead of claims to emblements, shall 
 continue to hold the same until the expiration of the 
 current year, and shall then quit on the terms of his lease 
 or holding, without notice being given or required by either 
 party. A fair proportion of the rent for the year, however, 
 is to be paid to each landlord or his representative. 
 
 Growing crops do not appear to be affected in any way 
 by the Agricultural Holdings Act of 1875, 38 & 39 Vict. 
 c. 92. 
 
 Emblements, although in themselves realty, since they 
 are, as it were, incorporated with the soil, yet are looked 
 upon by the law as chattels for other pui-poses than that 
 we have been considering, Thus, they were bequeathable 
 as chattels before the Statute of Wills, 32 H. VIII. c. 1 ; 
 they were forfeitable for outlawry (g) in a personal action ; 
 and by 11 G. 2, c. 19, they may be distrained for rent in 
 arrear, although not so by the Common Law ; also they 
 are chattels, inasmuch as they may be taken in execution 
 under a wiit of Jieri facias (h) ; but they are not chattels 
 
 {e) 2 Black. Com. US. 
 
 (/) An instance of the opera- 
 tion of this Act may be seen in the 
 case of Hams v. Welch, L. R. 4 
 C. P. 91 ; 38 L. J. C. P. 118. 
 
 (fl') Forfeiture for treason and 
 felony was abolished by 38 & 84 
 
 Vict. c. 23 ; but the Act does not 
 affect the law of forfeiture conse- 
 quent upon outlawrj'. 
 
 (A) EvaTis T. Roberts, 6 B. &. 
 C. 829, judgment of Bayley, J. ; 
 but see 56 6. 3, c. 50. 
 
OF PERSONAL PROPERTY. 123 
 
 SO as to be the object of larceny before tbey are severed 
 from the ground (i). 
 
 " Put the case," says the author of ' The Office and Respective 
 Duty of Executors/ "that a man dies in July— before tf^nd'^^fe 
 harvest, I mean — seised for life, or in fee tail, in his own to emblements, 
 right or his wife's, or estated for years of land in the right 
 of his wife, being sown with corn or any manner of grain, 
 the common saying is Quicquid plantatur solo, solo 
 cedit; yet this shall go to the executor of the husband, 
 and not to the wife or heir, who shall have the land ; but 
 hay growing — viz. grass ready to be cut down — apples. Grass, apples, 
 pears, and other fruit upon the trees, shall go to the wife ; '' "' 
 . as also if they had been upon a man's own land of in- 
 heritance, they should go to the heir, though the corn 
 should go to the executor. The reason of this difference 
 is, because this latter comes not merely from the soil 
 without the industry and manurance of a man, as the 
 others do ; and I take hops, though not sown, if planted. Hops, saffron, 
 and saffron and hemp, because sown, to pertain as corn to ^° ^^^' 
 the executor "(i). 
 
 From what has now been said, it will be perceived that, 
 as regards the right to emblements, the law favours the 
 devisee of land and the personal representatives of the 
 tenant sowing crops as against the heir in fee, in taU, 
 or the remainder-man, or reversioners of a tenant for life. 
 
 Of course, as may have been inferred, it is competent Tenant in fee 
 
 to a tenant in fee who sows land, to devise his land to A. J^„^ ^g™^ 
 
 and bequeath his crops to B. ; but unless he specifically do and his em- 
 xi 1 ii XT ■-,■, ^ P n • 1 ■ n ,. Wements to B. 
 
 tne latter, they will not form a part of his undisposed of 
 
 residuary estate. This was established in Cooper v. Wool- Cooper t. 
 
 fit {I), decided by the Court of Exchequer in 1856 ; and ^'^^it- 
 
 we may conclude our observation on the present subject 
 
 with a notice of this case. 
 
 (i) 2 Black. Comm. 404. (I) 2 H. & N. 122 ; 26 L. J. Ex. 
 
 (Ic) Page 147. 310. 
 
124 
 
 WILLS OF PERSONAL PROPERTY. 
 
 But they wiU 
 not pass under 
 a general 
 residuary 
 
 "Specific" 
 bequest of 
 emblements 
 necessary to 
 take them 
 from the 
 devisee of 
 realty. 
 
 Mortgage of 
 any kind a 
 chattel real. 
 
 Next presenta- 
 tion to a living 
 a chattel. 
 
 Advowson is 
 realty. 
 
 Advowson and 
 next presenta- 
 tion are in- 
 dependent 
 rights. 
 
 Eermell v. 
 The Bishop 
 of lAiwohi. 
 
 Advowson 
 presentative. 
 
 There, a testator devised his real estate to W. in fee, 
 and bequeathed to his executors all his furniture, money, 
 personal estate whatsoever and wheresoever, subject to 
 the payment of his debts. No specific bequest of emble- 
 ments appearing, it was held that, in the absence of any 
 words to rebut the ordinary presumption that it is the 
 will of the testator that he who takes the land shall take 
 the crops which belong to it, the emblements passed to 
 the devisee of the real estate. 
 
 We stated at page 80, that mortgages were chattels 
 real, and it may here be remarked that " the law is now 
 clearly settled, that whatever be the form of the mort- 
 gage, it will be part of the personal estate of the 
 mortgagee " (m). 
 
 We said also in the same place that a right to the next 
 presentation to an ecclesiastical benefice was a chattel 
 real. Now, the right in question must not be confounded 
 with that of advowson, for this signifies a perpetual right 
 of presentation to a benefice (%), and, being an incorpo- 
 real hereditament, is real property. The next presentation 
 thereto may, however, exist independently of the advowson 
 itself, and is not only a chattel real, and therefore per- 
 sonalty, but may even be, under certain circumstances, a 
 chattel personal. Thus, one presentation, before a living 
 becomes vacant, is a chattel real, but afterwards, it be- 
 comes a chattel personal (o). 
 
 The distinction between an advowson and a next pre- 
 sentation, in regard to the claims thereto of the heir and 
 personal representatives, of a deceased person, was stated 
 with such extreme lucidity by Mr. Justice Bayley; in the 
 case of Rennell v. The Bishop of Lincoln (p), that we 
 transcribe a portion of the learned judge's judgment then 
 delivered. He says : — 
 
 " The first point I shall consider is, what is the effect of 
 
 (m) 1 "Wms. Exors. pt. 2, bk. 2, 
 eh. 1, § 1, citing Coote on Mort. 
 617, 2nd ed. 
 
 (n) "Wms. R. P. ch. 4. 
 (o) "Went. Off. Ex. 131. 
 (p) 7 B. & C. 180. 
 
OF PERSONAL PROPERTY. 125 
 
 a vacancy in case of a presentative living {q), and I take 
 
 it to be clear that it immediately gives a new personal 
 
 right, a right arising from property in the advowson, but 
 
 from the moment of its creation ceasing to depend upon, 
 
 or to be influenced by it. Whatever may become of the 
 
 advowson, though the right to it instantly ceases, the right 
 
 of presentation continues untouched. In the common Where 
 
 case, where a church becomes vacant, and the patron dies, gajg^^^g 
 
 the advowson descends upon his heir ; — but to whom does personal repre- 
 
 the right of presentation pass ? To his heir ? No ; but ^^° * "^' 
 
 to the personal representative. And why? Because it 
 
 is no part of the advowson ; it is a personal right yielded 
 
 by the advowson, a fruit created by it, but it is no part of 
 
 the advowson ; it is wholly independent of it. Fitz. N. B. 
 
 33 P. (r), puts the case and gives his reason. If a man be Advowson in 
 
 seised of an advowson in gross (s) or in fee, appendant to f^' °^ ™' 
 
 a manor, and the church becomes void, and he die, his 
 
 executor shall present, and not his heir. Why ? Because 
 
 it was a chattel vested, and severed from the manor." 
 
 " If A. be tenant in tail of an advowson, and the church Advowson in 
 becomes vacant, and A. die, A's executor shall present, * ' 
 and not the issue in taU." 
 
 Again, " if a man have an advowson for a term, and the For a term. 
 church during the term become void, and the term expire, 
 the termor shall nevertheless present." 
 
 Lastly, " if a vicarage become void, and before the parson Vicarage. 
 
 (q) An advowson presentative is dcmt or in gross. The former are 
 where the patron has a right to those where the right of patronage 
 present a canonically qualified clerk is annexed to the possession of some 
 to the bishop, and to demand that manor ; the latter where the pro- 
 he will institute the former to the perty in the advoWson has heen 
 vacant benefice. This is the most separated by legal conveyance, 
 usual kind of advowson. 2 Black. When once this severance has 
 Comm. 22, 23, 24, where other been efiected, the advowson re- 
 advowsons are mentioned. mains for ever in gross, that is, 
 
 (r) Fitz-Herbert's Natwra Bre- independent of any other property, 
 
 mwm. The best edition is by Hale, and is annexed to the person of its 
 
 2 vols. 1794. owner. 
 
 (s) Advowsons are either appeti- 
 
126 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Presentative 
 benefice. 
 
 The point 
 decided in 
 
 The Bishop 
 of Lincoln. 
 
 Advowson 
 devisable, ajid 
 next presenta- 
 tion bequeath- 
 able by Wffl. 
 
 Benefice 
 must not 
 be vacant. 
 
 Ordinary and 
 legal meaning 
 of term assets. 
 
 present he be made bishop, he shall nevertheless present, 
 because it was a chattel vested in him." 
 
 "These authorities," continues Mr. Justice Bayley, 
 " appear to me to prove, beyond all question, that upon 
 a common presentative benefice, a vacancy creates a new 
 right from thenceforth, detached and independent of the 
 advowson, and liable to go in a different line from the 
 advowson ; and the next point I shall consider is, what is 
 the legal character of this right. And I take it to be a 
 chattel, and a chattel only." 
 
 The point decided in Mennell v. The Bishop of Lin- 
 coln, was, that where an advowson belonging to a pre- 
 bendary in right of his prebend becomes vacant, and the 
 prebendary dies without having presented, the right of 
 presentation belongs to his personal representative. 
 This was the result of the judgment in the Court of 
 King's Bench ; and in Easter Term, 1832, the House of 
 Lords affirmed it{t), six out of eight eminent judges, 
 including Bayley, J., dehvering their opinions in its 
 favour. 
 
 It will thus be seen, that while an advowson, being 
 realty, is descendible, devisable by Will, and may form part 
 of the assets in the hands of an heir, the right of pre- 
 sentation to a benefice while full is bequeathable, and 
 will be assets in the hands of the executor. Both, it may 
 be observed, are also saleable, although of course, to buy 
 or sell the next presentation to a vacant benefice, would 
 be simony (u). 
 
 The word assets, from the French assez — enough, 
 signifies, in ordinary parlance, what comes into the 
 hands of an executor or administrator so as to make 
 
 («) 1 01. & Fin. H. of L. Cas. 
 527. It was decided by the H. of 
 L. in 1731, that an advowson in 
 fee was real assets in the hands of 
 the heir, 2 Str. 879. 
 
 (u) Cripps' Laws of the Clergy, 
 520 ; 12 Anne, c 12. There is an 
 
 observable difference between the 
 right to nominate to a benefice and 
 the right to prese-nt to it. The 
 former, it has been said, is the 
 substance of the advowson, while 
 the latter is no more than a minis- 
 terial interest. 1 Burn, Eoc. L.187. 
 
OF PERSONAL PROPERTY. 127 
 
 the payment of the deceased person's debts and legacies 
 chargeable upon them. In its strictly legal sense, how- 
 ever, it signifies what things are saleable or otherwise 
 convertible into money, for payment of a person's lia- 
 bilities. This being so, it may happen that, although Where nesd; 
 an executor or administrator possesses the right to presentation 
 
 . „ . does not form 
 
 present to a vacant benefice, yet this may not form assets. 
 assets in his hands. "For example, the patron of a 
 church grants to the testator the next avoidance, and 
 the church becomes void ; and the testator dies before 
 he presents. After his death, his executor presents, 
 and has the benefit of preferring his son to his friend : 
 Yet this shall make no assets in his hands, because he 
 could not lawfully take money to present " (x). If, 
 however, in this case, a stranger were to present, and Stranger 
 procured his presentee to be admitted to the benefice, 
 damages recovered by the grantee's executor against him 
 in a quare vmpedit (y) would be assets (z). 
 
 If the next presentation to a living be granted to Grant of a 
 A., his heirs and assigns, it is clearly a mere chattel, ^an^and'Ms 
 notwithstanding the word " heirs : " It is but one turn, heirs will not 
 and where the thing is a chattel, the word " heirs " cannot character. 
 make it an inheritance (a). 
 
 Where, however, the parson of a church seised of the Where the 
 advowson in fee dies, in such case, his heir, not the ''^ir presents. 
 executor, shall present ; because simultaneously with the 
 avoidance vesting in the executor, the inheritance descends 
 to the heir ; and where two titles concur in an instant of 
 time, the elder shall be preferred (b). 
 
 But, on the other hand, if A. be seised of an advowson Adrowson 
 J. 1 , i 1 -1 appendant. 
 
 m gross or m tee, appendant to a manor, and an avoid- 
 ance happen in his lifetime, then the executor, and not 
 
 (k) 2 Wms. Exors. pt, 5, bk. 1, show wfierefore he hindered the 
 
 ch. 1. 1671. plaintiff in his right. See C. L. 
 
 (y) The original writ that for- Proceed. Act, 1860, h. 26. 
 merly lay for disturbing a patron's («) 2 Wms. Exors. ut supra. 
 
 right over his advowson, the de- (a) Toller, Exors. 190. 
 
 fendant having been compelled to (6) Id. 188. 
 
i28 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Summary. 
 
 duty on ad- 
 Towson, ■when 
 cliaigeable. 
 
 Mortgagor's 
 equity of 
 redemption 
 not a chattel. 
 
 Equity of 
 redemption is 
 not a chattel, 
 although the 
 mortgage 
 itseK is. 
 
 the heir, shall present, inasmuch as it is a chattel vested, 
 and severed from the manor (c). 
 
 Enough has now been said on this subject to indicate the 
 power which a person has of dealing by Will with an advow- 
 son, or that which has been called the fruit of it, in other 
 words, a right of next presentation to a benefice ; and it is 
 seen that the law regards the latter as a mere chattel (c), 
 and accordingly as much bequeathable as a chair or a table. 
 
 We may conclude our obsei-vations on advowsons and 
 next presentations, by stating that no successor to the 
 former is chargeable with succession duty, unless the ad- 
 vowson or right of presentation, or other interest con- 
 nected with it, be disposed of by, or in concert with, such 
 successor for money's worth. If such a transaction take 
 place, the successor shall be charged with duty on the 
 value received by him (d). 
 
 Reverting once more to the subject of a mortgage debt, 
 which is a chattel interest, it may possibly have occurred 
 to the reader to inquire whether the equity of redemption 
 in a mortgage, or the mortgagor's right to redeem it, is, or 
 is not, a chattel. To this we reply, that it is not a chattel, 
 and is not, like the mortgagee's interest in the debt, 
 whence it arises, personalty, although it may form legal 
 assets in the hands of an execdtor. 
 
 A mortgagor's equity of redemption is alienable, devis- 
 able, and descendible, is, and always has been, considered 
 an equitable estate in the land mortgaged, and not merely 
 an interest therein It may appear strange that, while a 
 mortgage debt secured on real property is considered in 
 equity as only personalty, yet that the right to redeem 
 such property should be deemed an equitable estate, nearly 
 tantamount, in short, to the unencumbered fee at law (e). 
 
 (c) See the judgment of Tindal, 
 C. Ji, in Bennell v. The Bishop of 
 Lincoln, 1 CI. & Fin. H. of L. Cas. 
 527. 
 
 {d) 16 & 17 Vict. c. 51, s. 24. 
 
 (e) 1 Ste. Com. 328 ; Sm. Man: 
 Eq. 311 ; "Wms. R. P. 394, 403, but 
 see the notes to Soward v. Harris, 
 2 L. C. Eq. 1035. 
 
OF PERSONAL PROPERTY. 129 
 
 But, as stated by Lord Hardwicke, in one of his valuable 
 judgments, the person entitled to the equity of redemp- 
 tion is, in equity, considered as the owner of the land, the 
 mortgagee only retaining it as a pledge or deposit ; and 
 for this reason it is that a mortgage in fee is considered as 
 personal estate, notwithstanding that the legal estate vests 
 in the heir of the mortgagee in point of law (/). Accord- 
 ingly, a mortgagee's property, in a mortgage in fee is only 
 personalty devolving on his executors or administrators, 
 for whom his heir or devisee will be a trustee (g). 
 
 We may here remark, that the term equity or right l^e term 
 of redemption, may be applied to mortgages or pledges of redemption " 
 personal property equally with those of realty, and the applicable to 
 mortgagee or pledgee may file a bill to foreclose and sell 
 the mortgage, as he may in the case of real property ; but 
 in the case of personalty, he may pursue either this 
 remedy, or may sell the pledge at his option, after giving 
 due notice of his intention to do so {h). 
 
 It was once a question whether equities of redemption l-^gai and 
 should be considered as legal or equitable assets ; but the assets. 
 better opinion at the present day is, that they are not 
 necessarily so (i). In determining to which of these two 
 classes property belongs, we must ask whether it came 
 into the hands and power of an executor by virtue of his 
 office, to dispose of in the course of administration. If 
 the answer to this be in the affirmative, the assets are 
 legal. Should, however, the property be such that no 
 person whatever claiming it can secure the same without 
 the intervention of a court of equity, — as, for instance, the 
 proceeds of sale of real estate, — such assets are equitable (i). 
 
 (/) Casbome t. Scarfe, 1 Atk. Court of Justice to have an account 
 
 603(1-736-1755) ;andin2L. C. Eq. taken of what may be due on a 
 
 See note (e) supra. mortgage deed ; the mortgagee 
 
 {g) Wms. E. P. 396. to redeem the property comprised 
 
 (h) Sm. Man. Eq. 332. The therein,' or to have an account 
 
 expression "file a bill" has, since taken. The redemption or fore- 
 
 the passing of the Jud. Acts, become closure of mortgages are subjects 
 
 a thing of the past. The mort- for the Chancery Division of the 
 
 gagor now brings an action in High Court, 
 the Chancery Division of the High (i) 2 Wms. Exors. pt. 4, hk. 1, 
 
 K 
 
130 
 
 WILLS OB" PERSONAL PROPBRTy. 
 
 Equity of 
 redemption of 
 mortgage in 
 fee, legal 
 assets. ' 
 
 Same of that 
 for a term of 
 years, and of 
 copyholds. 
 
 Test for 
 determining 
 whether pro- 
 perty is to 
 form legal or 
 equitable 
 
 Assets legal in 
 their nature 
 are not made 
 equitable be- 
 cause formerly 
 recoverable in 
 equity. 
 
 Judicature 
 Acts. 
 
 By the statute 3 & 4 W. 4, c. 104, the equity of re- 
 demption of a mortgage in fee, is made legal assets (k) ; 
 and recently it has been decided that the equity of re- 
 demption of a mortgage in fee of copyholds is also to be 
 administered as legal assets (I). 
 
 Nor, it is apprehended, does any doubt now exist as to 
 whether the equity of redemption of a mortgage for a 
 term of years forms legal or equitable assets (m), although 
 great authorities have pronounced it to be included in the 
 latter kind. 
 
 The test, shortly stated, for determining whether pro- 
 perty is to be administered as legal or equitable assets is 
 to be found in the answer to this question — Is it taken, 
 or recoverable by the executor by virtue of his office ? If 
 it be so taken, or recoverable, then the property forms 
 legal assets, and it matters not that the testator himself 
 had an equitable interest therein (n). 
 
 We thus see that such assets as are clearly legal are 
 not allowed to assume an equitable character simply be- 
 cause they are recoverable in equity, and, as before stated, 
 " it appears to be the better opinion at this day that equities 
 of redemption are not necessarily equitable assets " (o). 
 
 But whatever interest or importance the distinction 
 between legal and equitable assets may have hitherto 
 possessed, it would appear that this must now be regarded 
 as to a great extent modified by the recent Judicature 
 Acts. These, we presume, although not formally 
 abolishing the distinction in question, yet, inasmuch as 
 they aim at the merging of law and equity, or perhaps 
 more accurately speaking, allowing all branches of the 
 Court to administer law and equity concurrently, must 
 
 ch. 1, 1682, 3, citing Sto. Eq. Jur. 
 ch. 9, § 551. 
 
 (Jc) Foster v. ffcmdley, 1 Sim. 
 (K S.) 200. (1852.) 
 
 {V\ In re Burrell: Burrell v. 
 Smith, L. E. 9 Eq. 443 ; 39 L. J. 
 Ch. 544. 
 
 (m) See QooTc v. Qregson, 3 Drew. 
 
 647 ; 25 L. J. Ch. 706 ; and Shee 
 or Eue v. French, 3 Drew. 716 ; 
 26 L. J.'Ch. 317, judgments of 
 Kindersley, V.-C. ; also note (o) 
 mfra. 
 
 {n) Cook V. Oregson, supra. 
 
 (o) 2 Wms. Exors. pt. 4, bk. 1, 
 ch. 1. 1682. 
 
OP PERSONAL PROPERTY. ]31 
 
 be taken to intend the destruction of all distinctions in 
 legal terms in which no solid difference is perceptible ( p). 
 At the same time, it is not to be forgotten that these Acts 
 provide for the regular distribution of business, assigning 
 certain causes and matters to certain specified Divisions 
 of the High Court of Justice ; and all matters apper- 
 taining to the foreclosure and redemption of mortgages 
 are to be within the cognizance of the Chancery Division. 
 Accordingly, cases arising out of equities of redemption 
 will, in like manner, be decided upon in the same Division 
 of the High Court. 
 
 The reader may remember that by section 1 of the Wills Leasehold 
 Act, 1838, 1 Vict. c. 26, it is stated that leasehold estates ^'*^*''- 
 and other chattels real are included under the term " per- 
 sonal estate." "W^e will now say a few words concerning 
 these leasehold estates, first noticing the reason of their 
 being deemed by the law as mere chattel interests. 
 
 The term lease, from laxare, to loose, through the Meaning of 
 French laisser, signifies a contract between the owner of °™ ^^°' 
 an estate and some other pei'son, by which the former 
 agrees to allow the latter to have the possession and 
 profits of the whole, or some portion of such estate for 
 a certain period, in consideration of receiving rent or some 
 other return therefor. 
 
 In old times, leases were thought of little importance. Why a lease is 
 for the agreement between the landlord and the tenant— ter^'fereBt'"' 
 
 {p) As, for instance, in sect. 25, persons dying after Jan. 1, 1870, 
 
 snb-aect. 3, of the Act of 1873, all his creditors, whether by spe- Distinction be- 
 
 which abolishes the distinction be- cialty or simple contract, shall be tween specialty 
 
 tween legal and equitable waste; treated as standiag in equal degree, and simple 
 
 and again, in sub-sect. 6, which and shall be paid accordingly, oholiahed 
 
 makes debts and other chases in whether his assets be legal or equi- 
 
 action so assignable as to pass all table. This, however, seems to be 
 
 legal remedies thereon to the as- merely an affinnation of a doctrine 
 
 signee, which, before the Act, of equity which existed in the time 
 
 could be done only by virtue of the of Lord Chancellor Hardwicke : 
 
 doctrine of equity on the subject. PlunJcet v. Penson, 2 Atk. 293. 
 
 It may also be stated, that by (1742.) But see Shiphard v. Imt- 
 
 32 & 33 Vict. c. 46, in the ad- vMge,, 8 Ves. 26. 
 ministration of the estate of all 
 
 K 2 
 
132 
 
 WILLS OF PERSONAL PROPERTY. 
 
 In old times a 
 lease could 
 only be for 
 forty years. 
 
 An estate for 
 life of greater 
 importance 
 than the 
 longest term 
 of years. 
 
 All terms for 
 yeais are the 
 same in legal 
 contemplation . 
 
 Leases of 
 chattels. 
 
 called respectively the lessor and lessee — transferred no 
 property in the lands, &c., leased, but only a right to the 
 possession and profits for a time ; hence the main reason 
 why leaseholds are but chattels in the eye of the law, and 
 so devolve upon a deceased person's executor or adminis- 
 trator (q). 
 
 Again, by our ancient law, no lease could be made for 
 a longer term than forty years, and even those for this 
 period were under the power of the freeholder to destroy 
 them by a common recovery (r). Thus, the species of 
 holding in question was justly deemed "but of Kttle 
 regard," and although leases may now be made for any 
 number of years that parties may agree upon, yet a lease- 
 hold estate even for a thousand years is a less important 
 interest, so far as its legal value is concerned, than an 
 estate for life, which may possibly continue only for a day. 
 
 It makes no difference in the character of a leasehold 
 estate for what purpose, or for what period, it is created, 
 and we may add that, " aU terms of years, of whatever 
 length, possess precisely the same attributes in the eye of 
 the law" (s). 
 
 Not only lands and houses may be leased for years, but 
 also goods and chattels, whether animate or inanimate. 
 An office or appointment too may be let for years, 
 although of course a title of dignity cannot be conferred 
 for any definite term. But whatever may be the cha- 
 racter of the lease, so long as it be for a certain period, it is 
 personal property and a chattel interest, passing by law to 
 
 (g) Bac. Abr. tit. "Leases and 
 Terms for Years." Introduc. 
 
 (r) This species of assurance, and 
 also Fines were aboUshed by 3 & 4 
 W. 4. c. 74 ; but it is often neces- 
 sary to consider their effect even 
 now when investigating the title to 
 real estate. For an excellent ac- 
 count of fines and common re- 
 coveries, see Wms. R. P. ch, 2. 
 
 («) Wins. E. P. pt. 4. Com- 
 
 mencement of ch. 1. The reader 
 is reminded that all leases required 
 by law to be in writing (BoUoti v. 
 Tomlhie, 5 A. & E. 856 ; 6 L. J. 
 K. B. 45), namely, those for a longer 
 period than three years, and at a 
 less rent than two-thirds of the fall 
 value of the property, must be 
 made by deed : 8 & 9 Vict c. 106, 
 s. 3. 
 
OF PERSONAL PROPERTY, 133 
 
 a deceased person's executor or administrator. Any un- 
 certain estate in lands, tenements, and hereditaments is a 
 freehold, with which of course the personal representative 
 has no concern. 
 
 It has been remarked in a former page that, strictly No entail or 
 speaking, personal estate cannot, like realty, form the chawds b^y'the 
 subject of an entail, and the reasons of this are, the insig- ^*"ct rule of 
 nificance in which personalty was formerly held, and be- 
 cause only estates of inheritance are affected by the 
 Statute de Bonis (t). Chattels real, being personal How rule 
 estate, cannot then be entailed in the technical sense 
 of the word, but the law has long been settled that 
 limitations of these and other subjects of personal pro- 
 perty may be made to have the same operation as an 
 entail, through the medium of trusts and also executory 
 devises and bequests (u). 
 
 Similarly, a remainder may be created in personal 
 estate, although the word "remainder" is strictly ap- 
 plicable only in connection with dispositions of realty (x). 
 
 Terms of years, like money and other personal es- Executory 
 
 • m 1 -111 devise or 
 
 tate, then, may virtually be entailed by executory be- bequest. 
 quest (y), or by deed of trust, as effectually as estates of 
 inheritance, if it is not attempted to render them in- 
 alienable beyond the duration of lives in being, and 
 twenty-one years after. It may also be added that where 
 a term of years is bequeathed to A. for life, remainder- 
 to B., the term will shift over to B. (z). 
 
 (t) 13 Ed. 1, c. 1. See p. 68, Will of a future interest in realty Meaning of 
 
 note (/). or personalty, which cannot, by t^^m execu- 
 
 (m) Shep. Touch. 419, n. See the established general rules of *°T<t!™L' 
 
 ante, p. 67, note (c). But a simple law, take effect as a remainder, 
 
 devise of a term to A. and the See 2 Eop. Leg. 1530, and Cadell 
 
 heirs of his body, vests the term v. Vere, Tudor, L. C. in Real 
 
 at A.'s death in his executor. Prop. 360 ; and as to executory 
 
 Went. Off. Exor. 136. trusts, Qlenorchy v. Bosville, 1 L. 
 
 (x) 2 Eop. Leg. 1519. C. E(i. 1. 
 
 {y) An executory devise or be- (z) See the whole of this subject 
 
 quest seems to be a limitation by discussed in the notes to Leven- 
 
134 
 
 WILLS OF PEESONAL PROPERTY. 
 
 Estates pur 
 autre vie. 
 
 Statute of 
 Frauds, and 
 14 G. 3, c. 20. 
 
 Heir of a 
 tenant pur 
 autre vie is 
 caUed "the 
 special occu- 
 pant." < 
 
 WiUs Act, 
 1838. 
 
 Estate pwr 
 autre vie may 
 form personal 
 
 At one time an estate pur autre vie — as a lease for the 
 lives of others is called — not limited to a man and his heirs, 
 would, on the death of the owner, have belonged to no one, for 
 whoever first obtained possession of it might have held such 
 estate during the life of the cestui que vie, under the name 
 of " general occupant." Blackstone terms this practice " a 
 recuiTence to first principles," and " calling in the law of 
 nature " (a), which no doubt is quite true ; but such a state 
 of things was of too unseemly a character to be long per- 
 mitted in a civilized community ; accordingly, by the 
 Statute of Frauds, 29 C. 2, c. 3, s. 12, explained by 14 
 G. 3, c. 20, it was enacted that the owner of an estate pur 
 autre vie, not limited to him and his heirs, might dispose 
 of it by his Will, or if he died intestate, it should go to his 
 administrator as personalty. If the estate should have 
 been limited to him and his heirs, then the heir — called 
 in this case, " the special occupant " — should hold the 
 estate, which would then form in his hands assets by 
 descent. 
 
 But now, by the WiUs Act, 1838, s. 6 (6), if no dispo- 
 sition by WiU shall be made of any estate pur autre vie 
 of a freehold nature, the same shall be chargeable in the 
 hands of the heir, as assets by descent, if it shall come to 
 him by reason of special occupancy ; and if there shall 
 be no special occupant of any kind of estate of any tenure, 
 it shall go to the executor or administrator of the tenant 
 pur autre vie, and shall be assets in his hands, and shall 
 be distributed as the personal estate of the testator or 
 intestate (c). 
 
 QuAid entail. 
 
 thorpe v. Ashbie, Tudor's L. C. 
 on Keal Property, 763. As to tlie 
 TheUusson Act, see p. 78 of this 
 work ; also Griffiths \. Vere, Tudor's 
 L. C. in K. P. 430. 
 
 (a) 2 Black. Comm. 258. 
 
 (J) 1 Vict. u. 26. Sect. 2 repeals 
 the two enactments above men- 
 tioned in the text. 
 
 (c) It may be remarked that an 
 
 estate granted pur autre vie to a 
 man and the heirs of his body is 
 called a quasi entail, and as re- 
 gards its descent is Kke any other 
 estate tail. The heir to an estate 
 tail, or, as he is called, the special 
 heir, is not mentioned in the Wills 
 Act, 1838, so it is assumed that 
 qtiasi entails, if the entail be not 
 barred, are not devisable, and are 
 
OF PERSONAI- PROPERTY. 185 
 
 A lease made to A. for life, remainder to his executors Lease to A. for 
 for twenty-one years, would be, as regards the term of to his^xecutor 
 years, assets in their hands, since it is not necessary that for a term. 
 all things, to constitute assets, should have been in the im- 
 mediate possession of a testator, for things may be assets 
 which were never in his hands (cf), as for iastance, choses 
 in action, of which we shall speak presently. 
 
 Again, if a lease for years be given by WUl to A. for Lease given by 
 life, and on his death to B., and B. dies before A, this ^^ °^^ '^^°^ 
 term, although it never came to B., yet it wiU devolve at death to B. 
 A's death on B.'s executor, and form assets in his hands (e). 
 
 Also, a remainder in a term of years vested in a person, Eemainder in 
 notwithstanding that it may' never have vested in his j^^j^ 
 possession, wiU yet come to his executor, for the reason 
 that it bears a present value, and is capable of being sold (e), 
 although it cannot be delivered in execution by the 
 sheriff (e). 
 
 At the same time, it is necessary to bear in mind, that Absolute pro- 
 the absolute property of the things must have been nerass^\o"^ 
 vested in the testator, either in right of action or pos- make them 
 session, in order to make them assets in his executor's 
 hands (/). Thus, if A. mortgage a lease, or pledge a Examples. 
 jewel, or piece of plate, and before the day limited for 
 redemption or pa)rment die, his executor is entitled to 
 redeem at the day and place appointed. If he redeem 
 with the testator's money, then the chattels in question 
 will be assets, for this right was vested in the testator, in 
 whose place his executor stands (g). 
 
 So, for the same reason, executors may carry on the Executors 
 business of their testator; they may also be assignees business of 
 
 testator, 
 
 not subject to debts. As to Exors. pt. 4, bk. 1, ch. 1, p. 1657. 
 
 whether an executor may be spe- See as to the latter point in the 
 
 cial occupant of an incorporeal text, In re South, L. R. 9 Ch. 369 ; 
 
 hereditament, see Sugdeu on 43 L. J. Ch. 441. 
 Powers, 193, note. (/) Back. Abr. Tit. Executors, 
 
 (d) Went. Off. Exor. 125, n. H. 1 ; Shep. Touch. 496. 
 
 (e) Toller, Exors. 165 ; Went. (£r) ToUer, Exors. 164. 
 Off. Exors. 182, quoted in 2 Wms. 
 
136 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Assignee in 
 deed and in 
 law. 
 
 Property of 
 whicli a tes- 
 tator was a 
 trustee cannot 
 be his own 
 
 Leaseholds 
 for years. 
 
 Comprehended 
 in a general 
 devise of land 
 where no con- 
 trary intention 
 is seen in a 
 wiU. 
 
 Leases for 
 lives. 
 
 in law, where the testator was an assignee in deed, 
 — that is, in fact. Accordingly, if A. contract to deliver 
 a horse on a given day to B. or his assigns, then if 
 B. appoint J. S. to receive the horse, and B. die before 
 its delivery, the horse must be given up to B.'s exe- 
 cutor, because the latter is the assignee of B. — in whom 
 the right to the horse was vested — for such purpose {h). 
 
 But a trust estate, of which the testator was trustee, 
 would of course not form assets either in the hands of his 
 heir or executor for payment of such testator's debts, 
 because it was not vested in him absolutely, but only so 
 as to enable him to apply the estate for the beneficial 
 owner thereof (i). 
 
 Leasehold estates for years, then, being chattels real, 
 and therefore personalty, are bequeathable like other pro- 
 perty of this character ; they devolve on a deceased person's 
 executor, and in case of intestacy go to his administrator. 
 
 A general devise, however, of all a man's land will now 
 pass his leaseholds for years, unless a contrary intention 
 appear by the Will, although before the Wills Act, 
 1838 {k), there was a presumption of law to the contrary 
 of this, where the language of a devise was general (l). 
 Of course, leases for lives, or, in other words, estates pur 
 autre vie, which are freeholds, would now, as they were 
 before the above statute (m), be included in a general 
 devise of realty (?i), although leaseholds determinable on 
 
 - (A) Toller, Exors. 166. An exe- 
 cutor or administrator is an assignee 
 in law, because the rights and pro- 
 perty of a deceased person devolve 
 upon him by the law. Where these 
 are transferred by express convey- 
 ance or assignment then the person 
 receiving them is an assignee in deed 
 ot: fact. 
 
 (i) Whenever a trust estate can 
 form assets for payment of a de- 
 ceased person's debts, it is almost 
 superfluous to state that such 
 person must have been the cestui 
 
 que trust. See this subject fully 
 discussed in Lewin on Trusts, chap. 
 26, § 12—" A Trust as Assets." 
 
 (k) 1 Vict. c. 26, s. 26. 
 
 (T) Rose V. Bartlett, Cro. Car. 
 292, which governs the construction 
 of general devises as to leaseholds 
 for years, where the Will was made 
 before Jan. 1, 1838 ; see also 
 Knutsford v. Gardiner, 2 Atk. 
 450. 
 
 (in) Filzroy v. Hoioard, 7 L. J. 
 (0. S.) Ch. 16. 
 
 (n) 1 Vict. c. 26, s. 6 ; and see 
 
OF PERSONAL PROPERTY. 137 
 
 lives are tantamount to chattel interests, where there is 
 no special occupant, because they go to the executor or 
 administrator of the party that had the estate. 
 
 It may here be remarked that, by the interpretation Leaseholds are 
 
 clause of the Succession Duty Act, 1853 (o), leaseholds are ^^^^l^^^^^ 
 
 included under the term " Real Property," and not that the Succession 
 
 of " Personal Property ; " also, that by sect. 19, no legatee 1853, " ' 
 
 or other person shall after the date of the commencement and aie not 
 
 of this Act, namely, the 4th of August, 1853, be charge- wSgi^y 
 
 able under the Legacy Duty Acts with duty, not then due, duty, 
 in respect of any leasehold hereditaments of any testator 
 or deceased person, as belonging to the personal estate of 
 the testator or intestate. 
 
 Such being the case, leaseholds are realty for the pur- but with suc- 
 
 poses of this Act, and will therefore be liable to succession, "^^^"'^ duty. 
 
 though not to legacy, duty, unless directed to be sold. Rates of both 
 
 The rates of duty on successions are the same as those on „ J^'f ^ ^^^ 
 legacies ( p), so far as regards the relationship in which 
 predecessors and successors respectively stand to each 
 
 other, and it may be observed that these Acts are to be These Acts to 
 
 construed strictly and in favour of the subject as against i^^^^^lf 
 
 the Crown (g). successors to 
 
 Under the head of Chattels Personal, or pure per- p^p^^''^- 
 
 . T . , . Chattels 
 
 sonal property, may be comprised such things as are personal, 
 movable, as household goods, money, jewels, corn, clothes, 
 wood felled, and generally everything else that can be 
 transferred from place to place (r). 
 
 As before stated, they may be divided into two kinds, Animate and 
 animate and inanimate, the former including cattle of all 
 kinds, as sheep, horses, swine, goats, geese, ducks, 
 poultry, &c. (s), the latter such things as are above 
 enumerated. 
 
 V. Wright, 30 L. J. are deemed legacies for this pur- 
 
 381. pose, see 8 & 9 Vict. c. 76, s. i. 
 
 (0) 16 & 17 Vict. c. 51, s. 1. (g) Hobson v. Nmle, 17 Beav. 
 
 (p) Id. 3. 10, also 55 G. 3, 178. 
 
 c. 184, Schedule, part 3, for the (r) 2 Black. Comm. 387. 
 
 duties on Legacies. As to what (s) Went. Off. Exor. 
 
138 
 
 WILLS OF PERSONAL PROPERTY, 
 
 A dog and 
 other domestic 
 animals not 
 chattels at 
 Common Law. 
 
 Wo good reason 
 for this. 
 
 Tame animals 
 are now 
 equivalent to 
 chattels by 
 statute. 
 
 Stealing 
 
 A dog, however, not being the subject of larceny at 
 Common Law, is not a chattel within the 24 & 25 Vict, 
 c. 96, s. 88 (t), nor were other animals which did not 
 serve for purposes of food (u), or were kept for mere plea- 
 sure, the subjects of larceny under that system (t). But 
 all valuable domestic animals, and also what they produced, 
 were the subjects of larceny at Common Law, and may 
 therefore properly be termed chattels ; so that, where a 
 man stole a ham, the Court presumed it to be a subject 
 of larceny (a;), being the product of an animal used for 
 food. 
 
 But why dogs should not have been chattels is rather 
 diflficult to see, for, as the author of " The Office and Duty 
 of an Executor," says (y) : " Although they be for the 
 most part but things of pleasure, that hindereth not but 
 they may be valuable, as well as instruments of music, 
 both tending to delight and exhilarate the spirits ; a cry 
 of hounds hath to my sense more spirit and vivacity than 
 any other music ; " meaning thereby, we presume, the 
 kind of music common in the author's day. 
 
 The Legislature, however, has protected the owners of 
 those animals, which were not subjects of larceny at 
 Common Law, and has enacted that, whosoever shall steal 
 any bird or other animal ordinarily kept in a state of con- 
 finement, or for any domestic purpose, or shall wilfully 
 kill any such bird, beast, or animal with intent to steal 
 the same, or any part thereof, shall, on conviction before a 
 Justice of the Peace, be liable to be imprisoned for six 
 months, or forfeit a penalty not exceeding £20, above the 
 value of the animal For a second offence, the term of 
 imprisonment may be twelve months (z). And the offence 
 of dog-stealing, after a previous conviction before two Jus- 
 tices of the Peace, is an indictable misdemeanour, pun- 
 
 (t) Beg. V. Sobinson, Boll's C. C. 
 34 ; 28 L. J. M. C. 58. 
 
 {u) Rm V. Spearing, E. & K. 
 250. 
 
 (x) Meg. V. Qallears, 1 Don. C. 
 C. 501 ; 19 L. J. M. C. 13. 
 
 (y) V. U3. 
 
 (e) 24 & 26 Vict. c. 96, ». 21. 
 
OF PERSONAL PROPERTY. 139 
 
 istable by any term of imprisonment not exceeding 
 eighteen months (a). 
 
 Thus, all domestic animals of any kind, whether tech- ^^ domestic 
 
 . , ■ , . , n animals go to 
 
 mcally speakmg chattels or not, are personal property, theezecutor. 
 and go to the executor or administrator of a deceased 
 person. 
 
 The reader will remember that one of the main dis- Personal, 
 
 . unlike real 
 
 tinctions between real and personal property m England property, the 
 consists in this, that of the former species, no man can be ^goi^g" 
 the absolute owner, for the theory of our system is that he ownership ; 
 can hold only an estate therein (&). Personal property, on 
 the other hand, is essentially the subject of absolute owner- 
 ship, and the rule of law, modified' as we have seen, is 
 that an estate in personalty cannot exist. This being so, 
 the owner has generally an absolute property in chattels 
 personal; and accordingly, the owner of money, for in- 
 stance, immediately he becomes such justly, has the 
 absolute property therein. 
 
 But with regard to animals which are not of a tame ^^ '° animals 
 
 . ,. , . feroe naturce, 
 
 and domestic nature, or as they are called ferce naturae, the property is 
 
 in contradistinction to those domitce naturce, a man can- "^je"^}^ 
 
 not in such possess an absolute property. They are, in 
 
 fact, " either not the subjects of property at all, or else 
 
 fall under another division, namely, that of qualified, 
 
 limited, or special property, which is such as is not in 
 
 its nature permanent, but may sometimes subsist, and at 
 
 other times not subsist . . . (c). First, then, a man may 
 
 be invested with a qualified, but not an absolute, property 
 
 in all creatures that are ferce naturce, either per vnd/uus- 
 
 triam, that is, by his own industry in taming or reclaiming 
 
 them, propter vmpotentiam, or in conseqxxence of their 
 
 inability to escape when in confinement ; or, lastly, 
 
 propter privilegium, that is, by the reason of a privilege 
 
 of hunting, or othenvise taking them, in exclusion of other 
 
 persons, that is to say, of treating them as game (d). 
 
 (a) 24 & 25 Vict. o. 96, =. 18. (c) 2 Black. Comm. 391. 
 
 (6) Wins. R. P. ch. 1. (rf) 2 Black. Comm. 391. Sec, 
 
140 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Property in 
 animals ac- 
 quired per 
 md/ustrmm. 
 
 revertendi. 
 Pigeons, &e. 
 
 Boolis not 
 protected by 
 the Common or 
 the Statute 
 Law. 
 
 Concerning the first-mentioned class of animals ferce 
 naturcB, the rule of law is, that " they are no longer the 
 property of a man than while they continue in his keep- 
 ing or actual possession ; for if at any time they regain 
 theii- natural Hherty, his property instantly ceases ; unless 
 they have animum revertendi, which is only to be known 
 by their usual custom of returning." 
 
 Accordingly, pigeons, deer in a park strajdng therefrom, 
 but instantly pursued by a keeper, a marked swan, bees 
 when hived and reclaimed, are all the subjects of the 
 qualified property before mentioned ; in other words, the 
 property is defeasible by their complete escape from the 
 state of captivity to which they have been reduced. By 
 the Common Law, it was felony to have stolen such of 
 these reclaimed animals as were fit for food, if they were 
 known to have been so reclaimed ; but to have stolen dogs, 
 cats, and other animals which were not good for food, and 
 so held to be of no intrinsic value, would not have been 
 felony, although this would have been such an invasion of 
 property as might amount to a civil injury (e). 
 
 With regard to rooks, it may be observed that they are 
 not the subjects of larceny, either at Common Law or 
 by Statute (/) ; yet, if a person attempting to take 
 them, damage the trees whereon the rooks are, he 
 may now be punished under 24 & 25 Vict. c. 97, ss. 22 
 and 53. 
 
 on this point, the great case of 
 Blades v. Biggs, in which the 
 House of Lords affirmed two judg- 
 ments of the Courts below, 34 L. J. 
 C. P. (H. L.) 286. 
 
 (e) Id. 393. 
 
 (/ ) Harmam, v. Mockett, 2 B. & 
 C. 934 (1824); Judgment of Bayley, 
 J. This case appears to have been 
 decided on the grounds that rooks 
 are birds ferce natwrm, destructive 
 in their habits, and are not such as 
 form a well-known article of food. 
 
 In all probability, however, the 
 two latter opinions concerning 
 them must at the present day be 
 modified, since it is well known that 
 their depredations are really well 
 atoned for to the farmer, and young 
 rooks, at least, are at this day, 
 very commonly taken for food. 
 The judgment of Bayley, J., how- 
 ever, contains an excellent sum- 
 mary of the law on the present 
 subject, well worth perusing. 
 
OF PERSONAL PEOPERTY. 141 
 
 A man who has a qualified property in animals /eroe Qualified pro- 
 naturcB possesses the same in their young, until such ^^i^i^b 
 time as they can fly or run away ; for until then, the pro- reason of their 
 perty in them cannot be divested by the movements of escape/ 
 the creatures themselves, ratione impotentice. Accord- 
 ingly, if a stranger take them away, he may in some 
 cases commit a trespass, and in others may commit 
 larceny (g), or an offence under the game laws Qi), since at Game Laws, 
 the present day, the majority of animals ferce natwrcB 
 in this country come under the denomination of game. 
 
 By the first of the statutes enumerated below Qi), game Defiuition of 
 includes hares, pheasants, partridges, grouse, heath or ^^^*' 
 moor game, black game, and bustards. By the last-men- 
 tioned statute, this definition is extended to woodcocks. How extended 
 snipes, rabbits, and the eggs of pheasants, partridges, ^y^subsequent 
 black or moor game. 
 
 Since the Act for the Amendment of the Game Laws(i), Occupier of 
 the lessee or occupier of the land is entitled to the game to°game in the 
 thereon, unless it be specially reserved to the lessor — absence of a 
 which need not be by deed — and without such reserva- ment to the 
 tion, the latter has no right to enter upon the lands for the contrary. 
 purpose of taking the game, for if he did so he would be 
 a trespasser (/c). 
 
 It may happen tha.t an agreement to reserve the game Right may be 
 has no effect whatever, except to place the right to the 
 game in abeyance, — that is, to take it away from the 
 tenant, and not give it to the landlord (i). 
 
 Not only does the law at the present day give the right Eight to game 
 to game to the occupier of land, as against the landlord, g^aS!* * 
 
 (g) Meg. v. Cory, 10 Cox, C. C. L. J. Ex. 88. 
 
 23 ; Eeg. v. ShieMe, L. R. 1 0. C. (k) See the singular case of Cole- 
 
 158 ; 38 L. J. M. C. 21. trum (app.) v. Sathwrst, (resp.) L. 
 
 (A) 1 & 2 W. 4, c. 32 ; 6 & 7 R. 6 Q. B. 366 ; 40 L. J. M. C. 
 
 "W. 4, c. 65 ; 7 & 8 Vict. c. 29 ; 131, as to what is necessary to con- 
 
 25 & 26 Vict. c. 114. stitate such a reservation of game. 
 
 (t) 1 & 2 W. 4, c. 32. A lead- (Z) Per Cockburn, C. J., in the 
 
 ing case on this Act is Ewart v. above case. 
 Graham, 7 H. & L. Cas. 331 ; 29 
 
142 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Qualified right 
 to animals 
 ferce naturce 
 ratione pHvi- 
 
 Hatione soU. 
 
 Deduction from 
 the foregoing 
 statenie'nts. 
 
 Wlere pro- 
 perty in ani- 
 mals /ercE 
 natwce not 
 
 in the absence of a reservation thereof to him ; but if a 
 stranger kills the game thereon, the person entitled 
 thereto may maintain an action of trespass against 
 such stranger, and also recover the value of the game 
 destroyed (m). 
 
 Again, a man may have a qualified right to animals 
 fercB naturce, by reason of some privilege which he pos- 
 sesses in regard to the hunting or taking them, in exclu- 
 sion of other persons {n). This is the case of his right to 
 game, of which we have just spoken, wherein while living 
 the property is qualified, but when dead, it becomes abso- 
 lute in him who formerly possessed such qualified pro- 
 perty. So that, although these animals ferae naturae, 
 whether game or not, cannot, while living, be reckoned 
 among the chattels personal of their limited owner, yet, 
 when dead, they are his absolutely, against all the world, 
 if killed on his land (o). This property in animals ferae 
 naturae is said to arise ratione soli, or on account of 
 ownership of the soil. 
 
 The reader will now be able to deduce, from what has 
 been stated, that, while animals ferae nuaturae, reclaimed 
 and perfectly confined by a person, per indMstriam, 
 although his property in them may be only limited, yet, 
 being his as against all other persons, they wiU — even if 
 they escape, but yet come back again — form part of his per- 
 sonal estate, and so go to his executor or administrators. 
 
 The same may also be said of those over which he has 
 a limited property by reason of their own weakness ; but 
 with regard to the remaining class, namely, those in which 
 he has a qualified property ratione privilegii, the ease is 
 different. In these, the property is of the most limited 
 character possible — they are not in confinement ; if they 
 escape from land, they can have no animv/m revertendi, 
 
 (to) Lonsdale T. Bigg, 26 L. J. 
 Ex. (Chamber) 196 ; the same case 
 as Migg v. Lonsdale, in 1 H. & N. 
 923. 
 
 (m) 2 Black. Comm. 395. 
 
 (o) Blades v. Higgs, 34 L. J. 
 C. P. (H. L.) 286, where all the 
 cases arising on this subject are 
 discussed. 
 
OF PERSONAL PROPEKTY. 143 
 
 they are nmllius in bonis, and cannot be regarded as transmissible 
 private property transmissible to representatives. If they representa- 
 passed to any one they would pass to the heir, in order tives. 
 that his inheritance might be the more complete. 
 
 A fair criterion for distinguishing which class of the Criterion for 
 animals in question shall go to the heir, and which to the tj,g ra^^tivf 
 executor, seems to be found in these considerations ; first, "gi^ts of heir 
 
 I Ti I 1 11 •/■ ■! and executor. 
 
 as to whether they are at liberty ; and secondly, ii they 
 can be taken with or without trouble. If they can be 
 secured at once, as would be the case with animals kept in 
 captivity, it would appear they go to the executor ; if they 
 cannot be so taken, then the rule seems to be that they 
 descend to the heir {p). 
 
 On this ground, fish at large in a river or pond cannot 
 be the subject of absolute property {q), although fish con- 
 fined, or caught in a net, will go to the executor (r), be- 
 cause, in the latter instance, they are severed from the soil. 
 
 And, for a similar reason, since the executor's interest All domestic 
 is co-extensive with that vested in the testator, the pro- ff^a^^ g» *" 
 
 ' _ J^ _ the executor. 
 
 perty in all his domestic animals, however minute in 
 
 point of value, shall go to the executor ; as, for example, 
 
 house-dogs, ferrets, and the like ; or, although they are 
 
 kept only for pleasure, curiosity, or whim, as lap-dogs, 
 
 squirrels, parrots, and singing birds (s). 
 
 But a qualified property may exist not only in animals Qualified 
 
 feroB natwrcB, but also in many other things, which are other tMngs. 
 
 pure chattels personal, and therefore capable of absolute 
 
 ownership. Thus, a thing bailed or pledged, though it be Bailments and 
 
 itself a chattel, yet the property therein is of a limited 
 
 character, for neither bailor nor bailee, pledger or pledgee, 
 
 has an absolute property in the article bailed or 
 
 pledged (t). 
 
 " The same may be said of goods distrained for rent, or Goods dis- 
 trained. 
 
 (p) See Co. liitt. 8 a. Comm. 80, 81 ; Coggs v. Bernard^ 
 
 (q) Went. Off. Exor. 127. 1 Sm. L. C. and the notes thereto, 
 
 (r) Id. 143. where the distinction between a 
 
 (s) Toller, Exors. 147. mortgage and a pledge and other , 
 
 (t) 2 Black. Comm. 396 ; 2 Step. points are discussed. 
 
U4 
 
 WILLS OF PEESONAL PROPERTY. 
 
 Bailee's lien. 
 
 Right of lien 
 not bequeath- 
 able. 
 
 Money. 
 
 Effect of 
 locality, and 
 the rule of 
 
 Term 
 
 " moneys " 
 
 ■wlU not pass 
 
 chattels. 
 
 other cause of distress, which are in the nature of a 
 pledge, and are not, at the first taking, the absolute pro- 
 perty of either the distrainor or the party distrained upon; 
 but may be redeemed, or else forfeited, by the subsequent 
 conduct of the latter " (u). 
 
 But, although a bailee may have only the special quali- 
 fied property in the goods bailed to him, and which 
 consists in the possession of, and a temporary right to, 
 them, he may yet have a certain claim to them called a 
 lien. This is a right to hold property for the satisfaction 
 of a claim attaching thereto, or a right of retainer over 
 property in a man's possession until a debt due to him is 
 satisfied. The former, which does not depend on the pos- 
 session of the property, is called an equitable, the latter, a 
 lega,l lien, and in either case this right seems to be assign- 
 able, and, as a right, it is bequeathable by virtue of 
 1 Vict. c. 26, s. 1 (x). 
 
 Although money is considered to be included in the 
 term " chattels personal " (y), which, when construed in the 
 abstract, will comprehend all the personal estate of a tes- 
 tator (z), yet a bequest of " all and singular my household 
 furniture, plate, linen, china, pictures, and other the goods, 
 chattels, and effects, which shall be m or upon or about my 
 dwelling house at the time of my decease," will not include 
 a sum of money found in the house (a). The reason of 
 this decision is, that general words in a bequest following 
 a specific enumeration of articles iu a particular locality, 
 will be confined to articles ejusdem generis. 
 
 Conversely, " money " will not include chattels ; and 
 where a testator gave a house and £300 of lawful money 
 to his daughter, and " the remainder of all my moneys, in 
 whatever it may be, in bonds, consols, or anything else," 
 
 [y) 1 Wms. Exors. pt. 2, bk. 2, 
 
 (u) 2 Black. Comm. 396. 
 
 (x) See more on these points, 
 yosi, under "Debts" and "Eights," 
 and as to lien m general, Sm. 
 Merc. Law, 564 ; Add. Cont. 414, 
 454 ; Add. Torts, 277, 288 ; Jud. 
 Act, 1875, Order lii. Eule 6. 
 
 ch. 2, §§ 1, 703. 
 
 (z) 2 id., pt. 3, bk. 3, ch. 2, 
 §§ 4, 1178. 
 
 (a) Gibbs v. Lawreiice, 30 L. J. 
 Ch. 170. 
 
OP PEESOKAL PEOPEETY. 145 
 
 it was held that the wife was entitled to the testator's 
 residuary personal estate wherever invested, including a 
 life policy, hut not a leasehold, or furniture, or chat- 
 tels (6). 
 
 The reason of this is attributable to the application of AppKcation of 
 the rule of ejusdem generis (c), for " chattels," " goods," cjasdm ° 
 or "goods and chattels — " which are often synonymous, 'j^'nuris. 
 and always general, terms — will, when preceding or 
 succeeding {d) particular words, be governed in their con- 
 struction by these, and be limited to the species of article 
 indicated by them. 
 
 An instance of this application of the rule of ejusdem Expression 
 generis, may also be seen from the use of the term et particular ^^ 
 coetera which occurred in a Will that not long since formed words. 
 the subject of a judicial decision (e). In that instrument 
 the testator bequeathed all his " furniture, &c." with six 
 freehold houses, to his wife for life. Being possessed also 
 of some shares in a water company, it was a question 
 whether these passed under the expression " &c," and it 
 was held that they did not. This was so decided, be- 
 cause the meaning of " &c " was restricted by the imme- 
 diate context " furniture," according to the rule of ejusdem Money not 
 qeneris, and money cannot be represented as being of the «i«**.™ . 
 
 ".''.'■ ° generis witn 
 
 same nature with plate, linen, and household goods (/). furniture, &o. 
 
 The rule of construction in question is a very old one 
 of our testamentary law, and was well explained by Lord 
 Hardwicke, in the case of Crichton v. Symes, (3 Atk. 62 ; 
 1743), where, among other things, his lordship states that 
 
 (6) Stooke V, StooJce, 35 Beav. tels '' will comprise things animate 
 
 396. and inanimate ; whereas under 
 
 (c) See note (m), p. 104 of this "goods" are included only the 
 work. latter things. So that a horse, 
 
 (d) Timewell v. PerMns, 2 Atk. though a chattel, would not be in- 
 103; Judgment of Lord Hardwicke. eluded in "goods," but it might 
 The combined form, "goods and be in " goods and chattels. " 
 chattels," is in ore comprehensive (e) Barnaby v. Tassell, L. E. 11 
 than either term used alone, because Eq. 363. 
 
 although " chattels " will always (/) See the judgment of Sir "W. 
 
 include "goods," yet the converse Grant in Rawlmgs v. Jennings, 13 
 of this may not be so, for "chat- Ves. 39, 46. 
 
146 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 "Goods" 
 means goods 
 only, not the 
 whole personal 
 estate. 
 
 Intention is 
 the foundation 
 of the rule. 
 
 Two clauses in 
 a will may 
 receive dif- 
 ferent con- 
 structions as to 
 the general 
 words used. 
 
 lUustratire 
 case. 
 
 the word "goods" standing alone, means goods only, and 
 not the whole of a man's personal estate. 
 
 "Intention being the foundation of the restricted con- 
 struction put upon general words, superadded to other 
 more limited expressions, intention may also produce 
 different decisions in respect of the same general words in 
 the same Will, viz., it may restrain the general words in 
 one clause, and suffer their extension in another " {g). 
 
 The application of this doctrine is seen in the following 
 case {g) : — A testator devised to his daiighter the possession 
 of, and right to live at A., for life, to have the use of the 
 house, plate, linen, and " everything else,'' as her occasion 
 should require, as also stabling and fields or " any thing 
 else," notwithstanding an entail after. The testator next 
 directed that all his goods, furniture, plate, books, pic- 
 tures, and " everything else " should remain at his house, 
 and be enjoyed by the person in possession thereof for 
 the time being; finally, he settled the house and lands 
 on his nephews and their issue. Here then, there were 
 two clauses, in each of which occurred general words, 
 conjoined with particular ones ; and as to the first clause. 
 Lord Hardwicke, deeming that it must have been the 
 testator's intention to provide fully for his daughter's 
 residence at A., held accordingly, that the clause in- 
 cluded all kinds of provisions for man and horse in the 
 house or stable. But, with regard to the second clause, 
 his lordship held, that the articles therein enume- 
 rated being heir-looms, or rather chattels, to go as such, 
 the words " everything else, &c.," must be taken to in- 
 clude things ejusdem generis, that is, such as would go 
 with the house as heir-looms (A). At the time of the 
 testator's death, there were in the house, some pieces of 
 
 (g) 1 Kop. Leg. 262. Boon v. shows that the word "children," 
 
 Cornforth, 2 Ves. sen. 278, 280. though, in its primary sense, a 
 
 (7t) As to heir-looms which are word of purchase, yet intention 
 
 directed to go with an estate, see gathered from a 'Will, may make it 
 
 Byng v. Syng, 10 H. L. Cas. 171 ; one of limitation, to create an 
 
 31 1). J, Ch. 470. This case also entail. 
 
OF PEBSOXAL PROPERTT. I47 
 
 silk, liquors, watches, and a cane, concerning the right 
 to which a question arose, and as to these tilings. Lord 
 Hardwicke decided that they -would not pass as heir- 
 looms, not heing " proper " to go with the house, and not 
 ^usdem generis with the previously mentioned articles. 
 From this case we see, then, that the same general words 
 in different clauses of a Will, may iu one of them be 
 restrained, and in another enlarged. 
 
 A bequest, however, in general words, will not be re- Paitimlar 
 stricted by the enumeration of articles forming part of a gift do™ct°^ 
 
 previous gift (t). influence a 
 
 Again^ if one particular word m a bequest be followed bequ^t in 
 by general ones, the doctrine of ^usdem generis wiU not s™™^ **™^ 
 apply. Thus, where a testator devised all his estate at ^orfMlowed 
 S., or thereto adjoining, to A., and also gave her " all fur- ^J general 
 niture and all other movable goods here," it was held 
 that, not oiJy live stock and implements of husbandry 
 belonging to the testator would pass by this expression, 
 but also a sum of money in the house at his death (A). 
 
 The word "goods" when used alone, is essentially a "Goods "is a 
 general term, in fact nomen generali?simum, and when ^^^J^^ 
 construed in ils abstract sense, will comprise the whoh of 
 a man's personal estate of whatever description, whether 
 in action or possession {t). It is for the testator to modify 
 or restrict this wide abstract sense of the word, either by 
 the addition of other terms thereto, or by specifying 
 some particular locaUty at which certain things be- 
 queathed by him, may happen to exist ~ " 
 
 We have seen how the rule of ^usdtntn generis restrains How the 
 the general sense of the word "goods," or the expression locality re- 
 " goods and chattels " when used in a Will : let us now strains the 
 
 " ^ _ general sense 
 
 consider the effect of introducing the additional element of "goods." 
 of locality. 
 
 The following case, cited by Mr. Eoper (m), wiU well ninstiatiTe 
 
 (») Gorer t. DairU, 29 Bear. 207, 211. 
 222 ; 30 L. J. Ch. 505. (7) 1 Eop. L^g. 250. 
 
 (i) Swiiife* T. Swinfen, 29 Bear. (ro) Id. 251. 
 
148 
 
 WILLS OF PEESONAL PROPERTY. 
 
 Reason of 
 the decision. 
 
 Other general 
 terms used 
 in bequests 
 to include 
 chattels. 
 
 Comprehen- 
 siveness of 
 term "estate. 
 
 "Estate and 
 effects" will 
 pass realty 
 after bequest 
 of pure per- 
 sonalty, 
 
 serve our purpose. A testator bequeathed to C. all his 
 goods, &c., in his study, except his books and Avritings. 
 He gave to D. all his books at his chambers in the 
 Temple. At the testator's death, there were in his study 
 a considerable sum of ready money, securities for money, 
 and plate ; but he had removed his books into the country. 
 One of the questions arising from this set of circumstances 
 was, whether C. should take the money, securities, &c., 
 which were in the study, or the furniture only ; and the 
 Lord Chancellor held, that the money and plate passed, 
 but not the securities, as they were choses in action (n). 
 The reason of this decision was, that a particular place 
 having been specified by the testator, namely, his study, 
 only such things could pass as admitted of the quality of 
 locality, and as choses in action do not, to use the legal 
 phrase, savour of locality, they could not pass as " goods," 
 because the mention of place modified the abstract sense 
 of that word. 
 
 There are many other general terms in connection 
 with the present subject, which occur in WiUs, as for 
 instance " estate," " property," " household stuff," — an old 
 phrase, now replaced by that of "household goods" — - 
 "household furniture," "furniture," "effects," "movable 
 goods," " moneys," " money," " securities," and so forth. 
 
 Of these general terms, perhaps the most comprehen- 
 sive is " estate," for it has been held that this word — and 
 others too, considered to be of equivalent import therewith 
 — ^when used in a Will, are of themselves suf&cient to pass 
 realty as well as personalty. Nor will their meaning be 
 cut down and confined to the latter species of property, 
 merely because the accompanying expressions, and the 
 limitations and trusts of the Will are applicable only 
 thereto. So that, if a testator make specific bequests of 
 pure personalty, and then give the rest and residue of his 
 estate and effects to trustees, their executors, &c., upon 
 trusts applicable only to personalty, and also with an ulti- 
 
 (n) Green v. Symonds, 1 Bro. C. C. 129, in noiis. 
 
OF PERSONAL PROPERTY. 
 
 149 
 
 mate limitation to his next-of-kin, freehold property -will 
 pass under such residuary gift to the trustees (o). 
 
 A testator made a bequest of all the rest of his 
 household furniture, books, linen, china, goods, chattels, 
 estate, and effects, of whatsoever description and where- 
 soever situated, to trustees, &c., upon trust for sale, and 
 then made a bequest of his ready money, money arising 
 from sale of lands, securities for money, and all sums due 
 to him. No mention was made in the Will of a certain 
 freehold estate which the testator possessed at the date 
 of his Will, 1808 (p), and also at the time of his death, 
 but it was held that this, with the chattels, &c., passed by 
 force of the words " all the rest of my estate," contained iq 
 the residuary clause of his Will (g). 
 
 " Property " is also a word of considerable extent in a 
 Will, as may be seen from the following and other cases. 
 A testator gave to his wife, for her use and benefit, 
 his "vases, moneys, goods, furniture, plate, book debts, 
 securities for money, and all other property of every 
 description," that he might be possessed of, and it was held 
 that his realty also passed under the term "property" (?•). 
 
 But real estate will not pass even by the words " all 
 estate, effects, and pi-operty whatsoever and wheresoever," 
 if the trusts and general context of the Will point to per- 
 sonalty only, and afford no index to show that a disposition 
 
 {o) stein v. SUherdon, 37 L. J. 
 Ch. 369. 
 
 {p) Before the WUls Act, 1838, 
 a Will, as to the freehold and copy- 
 hold property comprised in it, was 
 held to take effect from its own 
 date ; hut as to personalty, it was 
 held to take effect from the death 
 of the testator. Now, all Wills 
 speak and take effect, with regard 
 to the property comprised in them, 
 as if executed immediately hefore the 
 testator's death : 1 Vict. c. 26, s. 24. 
 
 (g) Ddbson v. Bowness, L. E. 5 
 Eq. 404 ; 37 L. J. Oh. 309 : see 
 
 even where no 
 mention is 
 made of realty 
 in the will. 
 
 "Property." 
 
 Where real 
 estate will not 
 pass by words 
 "all estate," 
 &c., &c. 
 
 also, as an illustration of the force of 
 the word " estate " in a Will made 
 before 1838, Smith v. Smith, 11 
 C. B. 121 ; 31 L. J. C. P. 25. 
 
 (r) Re the Greenwich Hospital 
 Improvement Act, 20 Beav. 458. 
 "Property," like the rest of these 
 general terms, is liable to be affected 
 by the rule of ejusdem generis ; hut 
 if it follow the name of articles quce 
 ipso usu consumwntwr, the rule wiU 
 not take effect. See the important 
 case oi Arnold v. Arnold, 2 M, & K. 
 365; 4 L.J. Ch. 123. 
 
150 
 
 WILLS OF PERSONAL PEOPERTY, 
 
 Where residue 
 passed under 
 "other pro- 
 perty." 
 
 Force of the 
 ■word "pro- 
 perty." 
 
 "Effects." 
 
 of realty was contemplated by the testator when he exe- 
 cuted his Will (s). 
 
 Where, however, a specific devise of realty, and certain 
 bequests of personalty, were followed by a general re- 
 siduary devise and bequest of all the testator's other 
 property, whatsoever and wheresoever, to trustees upon 
 trusts, which were expressed in terms more appropriate to 
 personalty than realty, and at the time of his death the 
 testator possessed realty acquired since the date of his 
 Will, this was held to pass under " other property " {t). 
 
 A remarkable instance of the potency of the word 
 " property " in a Will, is seen in the case of Dean v. 
 Gibson (u). There, an illiterate testatrix made a Will 
 shortly before death, in which the only bequest was a gift 
 of her "personal property, consisting of money and 
 clothes." She was, however, possessed at the time of her 
 death, of cash, money out on mortgage, a reversionary 
 interest in a sum of money, and money secured on a pro- 
 missory note ; and it was held that all these passed under 
 her Will, by force of the words " personal property," also 
 that her previous imperfect enumeration of this did not 
 cut down the generality of the gift denoted by the 
 comprehensive expression which she had used. 
 
 The term " effects," strictly speaking, is applicable only 
 to personal property, and appears to signify more than the 
 word "goods." JEx.gr. in an action of trespass, for break- 
 ing and entering a dwelling house, and taking " goods, 
 chattels, and effects," it was held that the value of fix- 
 tures might be recovered by force of these words (x), 
 which would not have been so but for the latter term. 
 
 WiWprimd 
 facie means 
 realty. 
 
 (s) Coardr. ffolderness, 20 Beav. 
 147 ; 24 L. J. Ch. 388 ; see also 22 
 Beav. 391. 
 
 (f) Lloyd V. Lloyd, L. H, 7 Eq, 
 458 ; 38 L. J. Ch. 458, distinguish- 
 ing Coard v. Soldemess, supra. 
 It may he observed that the word, 
 "estate " in a "Will signifies priTud 
 fade realty, and that the Tmrden of 
 
 proof is on those who contend the 
 contrary. Patterson v. ffuddari, 17 
 Beav. 210. 
 
 (tt) L. R. 3 Eq. 713 ; 38 L. J. 
 Ch. 657. 
 
 {x) put V. SJiew, 4 B. & Aid. 
 206. Read also Wirm v. Ingilby, 
 6 id. 625, tat see 1 & 2 Vict. c. 
 110. 
 
OF PERSONAL PROPERTY. 151 
 
 Abbot, C.J., stated, in his judgment in this case, that 
 fixtures might be taken under a writ of fi. fa., which 
 contained a similar expression, although they are not 
 distrainable, since they cannot be returned in the same 
 condition as they were before their severance from the 
 freehold {y). 
 
 " Effects," standing alone in a testamentary instrument, "Effects " 
 will pass the whole of a testator's residuary personal ^^i_^™^ ™ 
 estate ; but where a testator left to A. whatever money 
 remained at his agents, and also any money that might 
 result from the sale of his effects, A. was not entitled to 
 administration as residuary legatee (z). 
 
 Locality is also to be taken into account in Wills, Locality, how 
 where the word " effects " occurs ; but locality need not s^o^words^as 
 form an element of consideration where it is obviously "or else- 
 controlled by some general term which deprives it of its 
 own effect. Thus, where a Will gave " all my personal 
 effects in my apartments at 13, Plaistow Grove, or else- 
 where," this latter word was held to have the force of 
 passing the residuary personal estate {a). 
 
 Of course, the term "effects" — which is synonymous "Effects" 
 with " property," or " worldly substance " (&) — like other ^h°"^°ro- 
 general words of similar import, is liable to be restrained perty" and 
 by the operation of the rule of ejusdem generis (c), substance." 
 although this is not so if the particular words occur in the 
 residuary clause of a Will. For instance, where a testator, 
 after enumerating certain particular things, concluded 
 with the words, "and all my effects whatsoever," Sir Euleof 
 
 ,„._,. _. "^^ o-T -Ti ejusdemgenens 
 
 Wilnam Grant held that the rule of ejusdeTn genens did not applicable 
 
 (j/) Nor were growing crops dis- 'Will by which such residue or re- 
 
 trainable before 11 G. 2, c. 19, mainder is given is termed the 
 
 (z) In the goods of O'LoughUn, residuary clause. 
 
 L. E. 2 P. & D. 102 ; 39 L. J. P. {a) In the goods of Scarborough, 
 
 & M. 53. A residuary devisee or 30 L. J. P. & M. 85. 
 
 legatee is the person who takes ' (6) 1 Eop. Leg. 280. 
 
 what remains of a testator's real or (c) UawUngs v. Jennings, 13 
 
 personal estate after the previous Ves. 39, 46 ; Judgt. of Sir W. 
 
 dispositions in his "WiLl have' been Grant, M.R. ; Sutton v. Sharpe, 1 
 
 performed, and that portioa of the Euss. 146. 
 
152 
 
 WILLS OF PERSONAL PROPERTY. 
 
 to "effects" 
 used in a 
 residuary 
 clause. 
 
 "Effects," 
 thougli strictly 
 applicable only 
 to personalty, 
 may yet pass 
 realty by force 
 of the context 
 of a Will. 
 
 "Effects" 
 "where appli- 
 cable to realty. 
 
 Case of Hogan 
 T. Jackson. 
 
 not apply, because of the extensive words employed, and 
 there was no reason to restrain the natural import of 
 effects by any inference as to his intention (d). 
 
 The word " effects," although, as before stated, in strict- 
 ness applicable to personal property only, has, when 
 coupled with " property," and also from a consideration of 
 other parts of the Will, been held to pass realty as well 
 as personalty (e). In the case where this was decided, 
 the testator commenced his WUl by stating that, " as to 
 my money and effects, I dispose thereof as follows," and 
 then proceeded to give parts of his realty. In a subse- 
 quent part of the instrument, he directed the purchase 
 of some interlying land belonging to another person, if 
 offered for sale, " to be added to my other adjoining pro- 
 perty." By thus connecting the terms " effects," " realty," 
 and "property," the Court inferred that he meant 
 " effects," to include his realty. 
 
 Again, in a comparatively recent case, " effects " was 
 held to apply to real estate ; and in the same case, the 
 doctrine of ejusdem generis, in regard to this term, was 
 again discussed (/). It would appear from this and other 
 cases, that the term " effects " is, or is not, to be deemed 
 applicable to realty, according to the wording of the con- 
 text of the Will, and also according to the sense in which 
 the testator himself clearly used it in reference to his 
 property. A testator having bequeathed " all the remainder 
 and residue of all the effects, both real and personal, 
 which I shall die possessed of," it was contended that 
 " real " effects meant real chattels, and therefore merely 
 personalty ; also, that " effects," " bequeath," and " pos- 
 sessed," were more appropriately used in reference to 
 
 (d) Campbell v. Prescott, 15 Ves. 
 503, 507, cited in 1 Eop. Leg. 280, 
 and see Mr. Roper's remarks 
 -.hereon. See also Pisher v. Hep- 
 Tmrn, 14 Beav. 626 ; also In re 
 Kendall's trusts, U Beav. 608 ; 21 
 
 L. J. Ch. 278 ; Bodgaon v. Gex, 
 L. J. N. Cas. Mar. 17, 76. 
 
 (e) Doe d. Andrew v. Lainchhury, 
 11 East, 290. 
 
 (/) Cross V. WilJcs, 35 Beav. 
 S62. 
 
Oi" PERSONAL PROPERTY. 153 
 
 personalty than realty ; but it was held that the whole of 
 the testator's property, real and personal, passed by 
 the clause (gr). 
 
 From what has now been said, it will be seen that the Intention of a 
 word " effects," and others of a like character, which, when ^e*tmiS^of 
 used alone are inapplicable to realty, may yet, by being Ms -will to be 
 connected with other expressions in the context of a Will, 
 have the effect of passing both real and personal estate. 
 We must look at the whole of the phraseology employed, 
 and gather therefrom what was the testator's intention in 
 using certain terms. The rule of construction on this Role of con- 
 subject is, that a testator "is always presumed to use the ^^^gj^'^^f 
 words in which he expresses himself, according to their words used by 
 strict and primary acceptation, unless from the context of 
 the Will it appears that he has used them in a different 
 sense ; in which case, the sense in which he appears to 
 have used them wiU be the sense in which they are to be 
 construed " (A). 
 
 The word " effects " then, unless conjoined with others "Effects "not 
 indicating intention to make it applicable to realty, will anj^otber ^ 
 only pass personalty ; but the case of Campbell v. Pres- '"■o'^s only 
 cott (i) shows that, the rule oi ejusdem generis will not be sonaity. 
 permitted to restrain the force of this comprehensive Whennsedin 
 term when it is used in the residuary clause of a Will, ciai^TofT^ 
 but only when it is connected with some other particular ^iU, the 
 species of chattels in a specific bequest (y). "effects" is 
 
 We now come to the consideration of the term " house- "°* restrained. 
 hold goods." This, says Mr. Roper, is one " frequently „gg^"^ 
 adopted by testators. By it everything of a permanent 
 nature, i.e., articles of the household which are not con- 
 sumed in their enjoyment, but were used in or purchased, 
 or otherwise acquired by a testator for his house, will 
 pass to the legatee ..." (k). 
 
 {g) Sogan v. Jackson, Cowp. tion of Wills, Prop. 1. 
 304 ; Brown's ParL Cas. by Tom- (i) See note (d), p. 152. 
 
 lins, 388. {j) 1 Eop. Leg. 280. 
 
 (A) WJgram, On the Interpreta- (i) Id. 233. 
 
 "Household 
 
154, 
 
 WILLS OF PERSONAL PROPERTY. 
 
 "Household 
 stuff." 
 
 " Household 
 effects." 
 
 ' ' Household 
 Furniture " 
 
 passes plate, 
 pictures, linen, 
 &o.. 
 
 but not 
 books, 
 
 It seems to be, in the main, equivalent to " household 
 stuff," inasmuch as it includes everything used in a house 
 for purposes of convenience, and excludes things qu(B vpso 
 usu consumuntur (l), together with others which do not 
 fall within the natural import of the term, as books, cattle, 
 choses in action, &c., imless, as in the other cases, the 
 context of the Will show a contrary intention on the part 
 of the testator (m). 
 
 But both of the above phrases differ in their construc- 
 tion from a third and similar one, that of "household 
 effects." This, succeeding the words " household furni- 
 ture," has been held so to extend the meaning of this 
 latter term as to comprise all property in the house or 
 premises, even if intended for use or consumption ; 
 and accordingly, that books, wines, and other similar 
 articles, intended to be used or consumed, would pass (n). 
 
 There is yet the other expression just mentioned, 
 namely " household furniture," — a very general term, 
 not capable of definition but only description (o) — This 
 includes all personal chattels that contribute both to the 
 convenience of a householder, and also to the ornament 
 of his dwelling. So that, under a bequest of " household 
 furniture," plate in common use and otherwise, if suitable 
 to the rank of the testator, pictures, linen, china, useful 
 and ornamental, will pass, but books as a general rule 
 will not (o), although the reasons for excluding these 
 appear to be of a somewhat unsatisfactory and inconclu- 
 sive character ( p). The ornamental things which can be 
 comprised in the term " household furniture " must, more- 
 
 {l) Swinb. pt. 7, § 10, where 
 the author laboriously enumerates 
 nearly every article of domestic 
 use included in "household stuff." 
 
 (m) Hotham v. Sutlon, 15 Ves. 
 319, which turned on the meaning 
 of " other effects." 
 
 (») Cole T. Fitzgerald, 1 Sim. & 
 Stu. 189 ; affirmed in 3 Kuss. 301. 
 
 (o) Kelly V. Powlett, Amb. 605. 
 See also Manning v. Purcell, 2 
 Sm. & G. ; 7 De G. M. & G. 55. 
 
 ip) Lord Hardwick's judgt. in 
 JBridgman v. Dove, 3 Atk. 201. 
 But see Cornewall v. Cornewall, 12 
 Sim. 298 : also Ouseley v. Anstrutheri 
 10 Beav. 462. 
 
OF PERSONAL PROPERTY, 155 
 
 over, be such as are adapted for the use or decoration of nor personal 
 the house, and will not include things that are used ex- ' 
 
 clusively for personal ornament (q). 
 
 But, although " household furniture " is so comprehen- nor tilings 
 sive a term, still its unexplained meaning will not be ^'^sumuntur 
 extended so as to include things obviously not within its 
 import. Accordingly, wines, and other things, consumable 
 by the use to which they are put, cannot, as a matter of 
 course, pass under " household furniture," nor yet under 
 "household goods," although under "other household 
 effects," they may, as we have seen, do so. 
 
 But neither under a specific bequest of "household Goods used ia 
 goods," " stuff," or "furniture," will articles which con- pTss^nde"" 
 stitute the whole or a portion of the testator's stock in "household 
 trade pass, whether they are his absolutely, or only "stuff," or 
 pledged to him (r) ; and the ground of this doctrine is, "f'*™'*'^"^«- 
 that a testator is presumed to use these terms with 
 reference to such things as were in his house for comfort 
 and convenience, and not with an intention to include 
 those that constituted the bulk of his personal estate (s). 
 
 It is apprehended, however, that a simple specific or May under 
 universal bequest of " effects " would pass a testator's 
 stock in trade, since, as before observed, this term is 
 synonymous with "worldly substance," — that is, of course, 
 assuming it to stand alone (t). But even where the word 
 " effects " is coupled with others, it may have sufficient 
 force to pass the residue of personal estate of whatever 
 kind. Thus, in a case, already cited (u), where a tes- 
 
 (q) Tempest v. Tempest, 2 K. & 6 Madd. 119, where a testator, 
 
 J. 635. after making bequests to dif- 
 
 {r) Pratt y. Jadcson, 1 hro. Tail. ferent persons, said, "All my 
 
 Cas. 222, 8vo ed. ; NichoUs v. other effects I wiU to J. H. to be 
 
 Osborne, 2 P. "Wms. 419; Crickton sold for his benefit," and it was 
 
 T. Symss, 3 Atk. 60, Judgment ; held that J. H. was entitled to all 
 
 Manning v. Purcell, 2 Sm. &, G. the testator's residuary estate, in- 
 
 284 ; 7 De G. M. & G. 55. eluding money, &c. 
 
 («) 1 Rop. Leg. 253, 268. («) Cam,pbeU t. Prescott, 15 Ves. 
 
 (t) As in Hecme v. Wiggmten, 503, 507. 
 
156 
 
 WILLS OF PERSONAL PROPERTY. 
 
 "AUthe 
 rest." 
 
 "Movables." 
 
 " MovaUes " 
 ■will pass 
 things ipso usu 
 conmmuntur. 
 
 tator bequeathed, among other things, "merchandize, 
 stock with jewels, household goods, furniture, and all 
 effects whatsoever," it was held that the rule of ejusdem 
 generis was excluded, and that everything passed by the 
 word " effects." 
 
 The words " all the rest," occurring in the residuary 
 clause of a Will, either of realty or personalty, or of both, 
 are of great power. For instance, in a comparatively re- 
 cent case (x), where a testatrix by a holograph Will — that 
 is, one written entirely with her own hand — after be- 
 queathing a leasehold house and several pecuniary lega- 
 cies, but devising no realty, proceeded to say, " And all ■ 
 the rest to be divided between A. and B.," it was held 
 that the real estate passed under these words. 
 
 Another general term, occurring in Wills of personalty, 
 is that of " movables," or " movable goods," or " movable 
 effects," all of which are nearly equivalent to the larger 
 one, " chattels personal." Movables are either such things 
 as can move by themselves, or such as can be manually 
 moved ; the former being the bona moventia of the Civil 
 Law {y), and comprising domestic animals, the latter, the 
 bona mobilia of the same system, including inanimate 
 things, as goods, plate, money, fruit or vegetables severed 
 from the soil, and so forth. 
 
 Now, under a bequest of " household goods," or " stuff," 
 all such things as these would pass, with the exception of 
 food, or other things whose use is in their consump- 
 tion (z), but since " movables " signifies " movable goods," 
 and as '' goods " is a term of the most general import, we 
 infer that a bequest of all " my movables " will, in the 
 absence of controlling words of locality, or those causing 
 the rule of ejusdem generis to apply, embrace the vjhole of 
 
 (b) Attree v. Attree, L. R. 11 
 Eq. 280 ; 40 L. J. Ch. 192. 
 
 (y) Moveniia diountur propria 
 animalia quae per se moventur ut 
 SerVi, jumenta, pecora. MoUlia, vera 
 quse anima carent, ut vasa, vestes, 
 
 et alia id genus. Sed hsec differentia 
 plerumque coufunditur. Calv. Lex 
 Jui'id. 
 («) Slamning v. Style, 3 P. "Wms. 
 
OF PERSONAL PROPERTY. 157 
 
 a tefstator's personal estate, including bonds, &c., and also 
 
 things consumable in their enjoyment. 
 
 A devise of "all my estate at S., or. thereto adjoining ; Also live stock 
 
 also all furniture and other movable goods there," will ^^^ money. 
 
 pass live stock, implements of husbandry on or about the 
 
 lands at the time of testator's death ; and also money 
 
 then found in the house (a). Conversely, " farming " Conversely 
 
 stock, or " stock upon a farm," of which the legal import gtook"'mii 
 
 is stock in husbandry — that is farming — will pass not only pass movable 
 
 all movable property thereon to a legatee, but also growing also growing 
 
 crops, if the devisee of the land is plainly excluded by the ""P^- 
 
 terms of the Will from taking them (6), and the exe- J^^^J}^ 
 
 cutor is as plainly meant to take the whole personal plainly ex- 
 cluded by the 
 estate. terms of the 
 
 The general rule of law concerning claims to emble- '^^■ 
 ments is, as remarked in a previous part of this work, ^„^"^^gf ^ 
 that although growing crops are personal estate, yet as emblements, 
 between an executor and a devisee of the land, they go to 
 the latter, unless a contrary intention can be deduced 
 from the terms of the devise. This was held to be so in 
 the case cited below (c). 
 
 Where the contest concerning groM^ing crops was be- Contest con- 
 tween a specific and a residuary legatee, and the testator between a 
 had bequeathed to his wife his household effects, book- specific and a 
 
 . . IP 1-1 residuary 
 
 debts, moneys, and also his ''■jarmtng stock of every kind legatee. 
 and description whatsoever," it was decided that growing 
 crops went to the executors and executrix, who in this 
 instance were residuary legatees {d). 
 
 The following case, however, shows a state of circum- Illustrative 
 stances from which it was inferred that the testator meant emblements 
 the emblements to go to his executor, not to the devisee (e). S"™? *" *^'^ 
 
 ' executor. 
 
 {a) Swinfen v, Swinfen, 29 Beav. legatees. 
 207. (c) West Y. Moore, 8 East, 339. 
 
 (6) Vaisey v. Reynolds, 5 Euss. (d) Vaisey v. Reynolds, supra. 
 
 12 ; Burhidge v. Burlidge, 37 L. J. (e) Rudgc v. Winnall, 12 Bear. 
 
 Ch. 47, where a specific bequest 357 ; 18 L. J. Ch. 469. 
 was upheld as against residuary 
 
158 
 
 WILLS OF PERSONAL PROPERTY. 
 
 " Movatles'' 
 and " goods ' 
 synonymous. 
 
 Bequest of 
 
 "movables" 
 
 simply. 
 
 AU movables 
 and immov- 
 ables, not 
 freeholds, are 
 chattels. 
 
 "Goods and 
 . chattels. " 
 
 Effect of a 
 codicil in 
 calling into 
 operation the 
 rule of ejusdem 
 
 Utensils. 
 
 After devising an estate to B. for life, testator bequeathed 
 to his executors all his furniture and effects, live and dead 
 stock, and all his personal estate whatsoever and whereso- 
 soever, upon various trusts, from which phraseology it 
 was held that the growing crops went to the executors, 
 and not to the devisee. 
 
 The term "movables" is, as just indicated, synonymous 
 with " goods," and this latter being, as we have also seen, 
 when construed in its abstract sense, a nomen gene- 
 ralissimwrn, it follows that " movables " must be a term 
 of the same character. Accordingly, if a man bequeath 
 his " movables " simply, such a bequest would include all 
 his personal estate (/), for things personal in our law in- 
 clude not only things movable, but many other things 
 which are not of this character ; but which, on the other 
 hand, are not freehold. All such things are, as we have 
 seen, called chattels, and consequently, if " movables " has 
 the testamentary effect above ascribed to it, d fortiori, 
 will the comprehensive one of " chattels," which embraces 
 both movable and immovable things. Still more so will 
 the term " goods and chattels," always assuming that these 
 and similar expressions are not so used as to render them 
 subject to the operation of the rule of ejusdem generis. 
 
 The effect of a codicil, in causing this rule to apply to 
 a bequest, may be seen in the case cited below {g). There, 
 a testator by his Will bequeathed legacies of £100 to each 
 of five persons, and also his "goods and movables." By 
 a codicil he directed his " goods and utensils " also to be 
 divided between the same persons ; and it was held, that 
 the general words were to be limited to utensils and 
 articles ejusdem generis, and that, as to the beneficial in- 
 
 (/) See Lord Cowper's Judgt. in 
 an anonymous case, 1 P. "Wms. 
 267. 
 
 (3) Sutton V. Sharp, 1 Euss. 146. 
 As to the term "utensils," its name 
 sufficiently indicates its import. 
 
 and, standing alone, it will not pass 
 articles of luxury though in common 
 use. See Dame Latimer's Case, 
 Dyer, 59 b, pi. 15 ; Fitzgerald v. 
 Field, 1 Euss. 430 ; 4 L. J. Ch. 
 (0. S.) 170. 
 
OF PERSONAL PROPERTY. 159 
 
 terest in the general residue of his property, the testator 
 died intestate. 
 
 The next terms of a general character to be noticed ''^""^y'",, 
 are "money," "moneys," and "securities for money." " secarities for 
 Money signifies the lawful coin of these realms, made by "'""^y-" 
 the sovereign's authority ; but at one time it appears to 
 have signified also " forraine coyne by proclamation made 
 currant within the realme " (h). Commonly, legally and 
 commercially speaking, " money " includes bank-notes 
 and similar media of currency, easily convertible into 
 coin, such as notes payable to bearer, and bills of exchange 
 indorsed in blank (i) ; also, cash — a term with which 
 money may be accounted a synonym — wherever situated. 
 Accordingly, a bequest of money, or ready money, " in my Bequest of 
 house, or out of it," or " at my bankers," will pass bank p,.™™ ^^ 
 notes and cash with the banker (k), whether there upon money." 
 deposit or drawing account (l), but it would carry nothing 
 more (m). If, however, a man were to bequeath all his 
 " money," at A., and he had no money there, but only 
 securities for money, these would probably be allowed to 
 pass, under the bequest, in order to prevent the testator's 
 intention from being wholly defeated (%), and especially 
 
 (h) Co. Litt. 207 b. Nevinson v. Lennard, 34 Beav. 487. 
 
 (i) That is one with, merely tlie (J) Stein v. EUherdon, 37 L. J. 
 
 holder's name written on its back. 369. 
 
 If the bill be indorsed by the holder (m) Downes v. Tovmsend, Amb. 
 
 as payable to some other person 280 ; Collins v. Collins, L. E. 12 
 
 as to A. or order, this is said to be Ex. 456. 
 
 a special or fuU indorsement, and (») Oallini v. Nolle, 3 Mer. 691, 
 
 being payable only to such person, and perhaps on the principle of 
 
 cannot pass from hand to hand Gully v. Davis, L. E. 10 Eq. 562 ; 
 
 without being re-indorsed either 39 L. J. Ch. 684, where a man gave 
 
 specially or in blank at each trans- all his " real estate " without words 
 
 far. See Byles on BUls, 136-8. of locality or description, and it 
 
 (Jc) See the important case of appearing that he only possessed 
 
 Parker v. Marehcmt, 1 Y. & C. ; C. C. leaseholds these were held to pass. 
 
 290 ; 11 L. J. Ch. 223 ; affirmed in Probably, there is a distinction be- 
 
 1 PhUl. 0. C. 356 ; 12 L. J. C. P. tween the supposed case in the 
 
 173 (Devise), and 12 L. J. Ch. 385 ; text and this one, inasmuch as 
 
 also as to the meaning of "money," locality is mentioned in the former. 
 
160 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Tendency of 
 the Courts to 
 place a liberal 
 construction 
 on word 
 " money.'' 
 
 ' ' Money and 
 securities for 
 money of every 
 description " 
 may pass a 
 mortgage debt. 
 
 where the context of the Will indicates that the testator 
 meant that they should so pass (o). 
 
 The tendenc}"^ of the decisions is clearly to put a liberal 
 construction on the word " money," in favour of a legatee. 
 Ex. gr. where a testator gave to his wife " any money that 
 I may die possessed of, or which may be due and owing to 
 me at the time of my death," it was held on appeal, and 
 reversing the decision of Stuart, V.-C, that a policy of 
 insurance on testator's own life passed under the word 
 "money" (p). 
 
 The following case (5) shows that the words " money 
 and secui'ities for money of every description " may pass 
 money invested on mortgage, although they will not carry 
 bank stock or canal shares (r). 
 
 A. left a Will, in which she gave a legacy of ^£3000 to 
 B., upon trust for C. and her children. D. was sole exe- 
 cutrix and residuary legatee of A.'s personal estate, and 
 during B.'s life the interest on the £3000 was paid to C. 
 At the time of D.'s death, the estate of A. included, in 
 the first place, a sum of money advanced on mortgage by 
 B. in his own name, with D.'s approbation, out of moneys 
 forming part of A.'s estate. This sum, it was held, did 
 not pass by D.'s Will under the words " money and secu- 
 
 (0) See Gosden v. DoUereU, 1 Myl. 
 & K. 56 ; 2 L. J. Ch. 15, where it 
 was held that stock will not pass 
 tinder " money," except by force of 
 the context of the Will. See also 
 Lamer v. Lamer, 3 Drew. 704 ; 
 26 L. J. Ch. 668 ; Cowling v. 
 Cowling, 26 Beav. 449, where a re- 
 versionary interest in stock did not 
 pass under "goods, &o., and all 
 money due to me at my deicease ; " 
 and Newman v. Newman, 26 Beav. 
 220, where the general residue was 
 not carried by the mere enumera- 
 tion of a variety of general words ; 
 Montague v. Sandwich, 33 Beav. 
 324, where the words "residue of 
 money" did, however, pass the re- 
 
 siduary personal estate. 
 
 {p) Petty V. Wason, L. R. 4 Ch. 
 574. 
 
 (q) Ogle v. Knipe, L. R. 8 Eq. 
 434 ; 38 L. J. Ch. 692. 
 
 {r) See also as to bank stock, 
 SUngsly v. Orainger, 1 De G. M. & 
 G. 385 ; 25 L. J. Ch. 573 ; affirmed 
 7 H. L. Cas. 273 ; 28 L. J. Ch. 616 ; 
 and as to canal shares, Bud- 
 leston V. OoiMsbury, 10 Beav. 
 547. Canal shares, like railway 
 and waterwork shares, are per- 
 sonal property, but New River 
 shares are not. See Bligh v. Brent, 
 2 Y. & Coll. 268 ; 6 L. J. Ex. Eq. 
 58. 
 
OF PERSONAL PEOPERTY. 161 
 
 rities for money of every description." Another part of 
 A.'s estate at and after D.'s death, consisted of a sum 
 secured on mortgage to A. in Iwt own name, and this, 
 it was held, would pass under the above words, also 
 moneys which had been received by one of A.'s .trustees 
 after hei' death, to pay off a mortgage, the trustee in ques- 
 tion acting as agent for D. (s). 
 
 But these words will not pass an I. 0. U., for this is ^^ I- o. U. is 
 held to be only an acknowledgment of a debt, not an for money, 
 instrument given to secure the repayment of money, and 
 accordingly no action can be brought upon it {t). 
 
 Nor by the present rules concerning the construction Nor is a 
 of Wills, can a banker's deposit note pass as a "security ^gpo^it^otg 
 for money ; " so that, where a testatrix bequeathed all her 
 bonds, promissory notes, and " other securities for money, 
 and the money secured thereon," it was held that a 
 banker's receipt for £,\5Q, "to account for on demand," 
 would not pass under such bequest (u). 
 
 We ought here to observe, that the learned iudge Inadequacy of 
 
 . ° _ ' . the reasons for 
 
 who decided the last cited case, expressed himself to the excluding 
 effect that, but for previous authorities, by which he was the'desimation 
 bound, he " should have had no difficulty in holding that of " securities 
 the testatrix did intend to pass this deposit note," by 
 the bequest set out above. The case, however, not being 
 res mtegra, but covered by decisions, his Honour was 
 compelled to follow them ; yet, it must be confessed, some 
 of these do not seem to be quite in accord with common 
 sense, but on the other hand almost appear to violate the 
 cardinal and oft quoted rule of construction as to the 
 carrying out a testator's intentions. 
 
 (s) Ogle V. Knipe, L. R. 8' Eq. (m) ffopkins v. Abbott, L. R. 19 
 
 434 ; 38 L. J. Ch. 692. The cir- Eq. 222 ; 44 L. J. Ch. 316 : Judgt. 
 cumstanoes of this case were of a of Malins, V. C. A banker's de- 
 somewhat complicated character, posit note, however, must be re- 
 and It is cited here merely to show garded as a document almost 
 that "securities for money" may amounting to a security for money, 
 include a mortgage debt. See the case of Woodkams v. The 
 
 {i) Ba/rry v. Sarding, 1 Jo. & Aiiglo-AvMralian and Universal 
 Lat. (Ir.) 475 : Judgt. of Lord St. Life Assurance Co., 3 Gifif. 238, 
 Leonards during his second Ii-ish and p. 15 of this work. 
 Lord Chancellorship, 1841 — 7. 
 
162 
 
 WILLS OP PERSONAL PROPERTY. 
 
 "Moneys" 
 comprises 
 money at a 
 banker's, 
 whether on a 
 deposit or cur- 
 rent account. 
 
 "Money" will 
 not pass " se- 
 curities,'' nor 
 vice versd^ will 
 "securities 
 for money " 
 pass money 
 itself. 
 
 *" The word " moneys " in a Will seems to be of similar 
 import with "money," and neither term will include 
 " securities for money;" yet "it is settled law that, where 
 a person having money in the hands of his bankers, 
 whether on deposit or on a current account, gives by 
 Will all his moneys, that gift carries the moneys of 
 the testator in the hands of his bankers, both on a 
 deposit account and on a current account " {v). In 
 Vaisey v. Reynolds (x), the testator gave to his wife 
 " all his moneys in hand," and to his executors " all his 
 moneys out at interest on mortgage, notes of hand, or any 
 other secttrii'ies' whatsoever," and it was held that the 
 balance of the testator in his banker's hands, though it 
 carried interest, was not out at interest on security, but 
 was money in hand, and so passed to his wife (v). 
 
 It is clear, then, that for the purpose of construing a 
 bequest of "moneys," "money," "ready money," or 
 " money at my bankers," no distinction exists between a 
 testator's drawing and deposit account (y) ; also that a 
 mere gift of " moneys," &c., will not carry securities for 
 money, whether negotiable or otherwise (z). 
 
 Conversely, the expression " securities for money, and 
 all money due thereon," will not pass money, I U's, 
 and banker's deposit notes, for these are not securities 
 in the present acceptation of this term; but money 
 in the stocks will pass under such or similar words (a). 
 Again, shares and stock will not pass, even by a 
 
 Securities for 
 money. 
 
 (») Per Malins, V.C, in the 
 same case. 
 
 (a) 5 Kuss. 12 ; 6 L. J. Ch. 172 : 
 Judgt. of Sir J. Leach, M.R. 
 
 (y) Ma/rming v. Pureell, 7 De G. 
 M. & G. 55; 24 L. J. Ch. 522, 
 affirming, on this point, a decision 
 of Stuart, V.C, 2 Sm. & G. 284 ; 23 
 L. J. Ch. 423 ; Langdale v. Whit' 
 field, 4 Kay & J. 426 ; 27 L. J. Ch. 
 796. 
 
 («) Hertford V. Lowther, 7 Beav. 
 1 and 107 ; 13 L. J. Ch. 41, where 
 
 the terms of a hequest in a codicil 
 were " all the goods, chattels, plate, 
 linen, money at the hankers," &c. j 
 In re Powell's Trusts, Johns. 49, 
 where sums secured to a testatrix 
 by notes of hand would not pass 
 under "all my ready money," 
 although cash in a savings' bank 
 Would. 
 
 (a) Bescohy v. Pack, 1 Sim. & Stu. 
 500 ; 2 L. J. Ch. 17. As to what 
 are deemed securities for money, 
 see Byles on Bills, 10, 11. 
 
OF PERSONAL PROPEKTY. 163 
 
 bequest of " all moneys in the house and out of it (b), nor 
 will shares in a building society, nor yet residuary personal 
 estate given by the words — " the whole of my money" (c). 
 
 But " ready money," while passing all money on de- interest on 
 posit or current account at a bankers, will not carry dj^deSon 
 interest on mortgages, or dividends on shares or stocks (d). stares will not 
 
 -r-i- 11 n • » -n P^^ under 
 
 Fmally, " all money owmgtome on mortgage, will pass "money" or 
 
 such money, but not sums of money charged on estates ""^^ady^ 
 
 for portions, and to which the testator died entitled (e). "Money on 
 
 It should, however, here be remarked that, what has been mortgage " 
 
 'Will U3£S 
 
 heretofore said, must be taken as subject to the wording under tMs 
 of the context of the Will, in which all or any of the above designation, 
 
 ; . ■' but not sums 
 
 general terms occur, for if it can be clearly gathered from charged on 
 the context, that the testator, by the use of certain phrase- portions.'"^ 
 ology intended property to pass which would not by the 
 established rules of construction do so, the Courts 
 will effectuate the intention of the testator in this re- 
 spect. Thus, the word " money " unexplained in a Will, ",^°'^^'^ '.„ 
 ^ , , , „ 1 /.I 'il™® m a Will 
 
 does not pass stock ; but where, from the context ot the does not pass 
 
 whole instrument, it is clear that the testator means that ^*°°'^" 
 his stock, &c., should pass, then the Court will act upon 
 the intention so conveyed (/). 
 
 In the case where this was held, the testatrix was Context may 
 possessed of money at her bankers, in the funds, and in a ^ pass stcck 
 savings bank, and after giving by her Will several lega- ^J^^^^ *8™ 
 cies, she gave " whatever remained of money " to A., and 
 this was held to carry the stock. 
 
 Again, where a testator left a small sum at his banker's. Intention of 
 and £1200 Consols, but directed his executors to take for 
 certain trusts all " moneys " that might be due to him at 
 his death, it was held that the sum in Consols passed 
 as moneys, such having been the testator's intention (g). 
 
 (6) GosdenY. JDoiterill, 1 My]. & Ch. 369. BntseeFryerv. BanJeem, 
 
 K. 56 ; 2 L. J. Ch. 15 ; Collins v. 11 Sim. 55 ; 9 L. J. Ch. 337. 
 Collins, L. R 12 Eq. 455 ; 40 L. J. (e) FouleU v. Mood, L. E. 5 Eq. 
 
 Ch. 541. 115 ; 35 L. J. Ch. 253. 
 
 (c) Zowe V. Thomas, 5 De G. M. (/) Dowson v. Oaskoin, 2. Keen, 
 & G. 315 ; 23 L. J. Ch. 453, 616. 14 ; 6 L. J. Ch. 295. 
 
 (d) Stein v. Bitherdon, 37 L. J. (g) Waite v. Coombes, 5. De G. & 
 
 M 2 
 
164 
 
 WILLS OF PERSONAL PROPERTY. 
 
 AU remain- 
 ing snms." 
 
 " Surplus 
 money. " 
 
 "Residue 
 money." 
 
 ' ' Any money 
 that may 
 remain." 
 
 " All and sin- 
 gular my 
 other property 
 and estate." 
 
 Exception from 
 residue for all 
 puinposes. 
 
 Where a testator in his "Will bequeathed " all remaining 
 sum or sums of money," the context of the Will, in con- 
 nection with these words, was held to pass a share in long 
 annuities Qt), on the principle of Kendall v. Kendall (g). 
 Also, where the testator gave "surplus money," these 
 words in union with the rest of his Will, were held to 
 pass South Sea Stock, and Sf per cent. Stock (i). And 
 when the words used were " residue money," which them- 
 selves were preceded by specific bequests, the general 
 residue of the testator's personalty was allowed to pass (k). 
 
 The words " any money that may remain after pay- 
 ment of debts," will, in the absence of a direct residuary 
 bequest, be considered tantamount to such a disposition, 
 and a bequest in the above terms will pass a testator's re- 
 versionary interest in a sum charged on real estate (1). 
 
 When a testator employs such sweeping words as " all 
 and singular my other property and estate," there can 
 hardly be any doubt as to his intention concerning the 
 disposition thereof. Accordingly, it has been held that 
 these terms occuning in a Will, include, as a rule, not 
 only everything not before mentioned in it, but every- 
 thing of which a previous disposition therein may happen 
 to fail (m). 
 
 We say that this is so " as a rule," because, if it should 
 appear from the Will that property comprised in a pre- 
 vious disposition in the same instrument, was intended to 
 be excepted for all purposes from the residuary clause, and 
 not merely to benefit some particular legatee, the rule 
 will not operate (m). 
 
 S. 676 ; 21 L. J. Ch. 314. See 
 also to the same effect the older, 
 Ibut important cases of Kendail v. 
 £emMl, 6 L. J. Ch. Ill, and New- 
 ^rgh V. Ayre, id. 153. In the 
 Jfirst of these, " my property which 
 may remain," were the important 
 ■words and carried the stock, and 
 in -the second, the word "moneys " 
 •was held to pass the proceeds of 
 ^ale of real estate. 
 
 (A) Orosvenor v. Dwrston, 25 
 Beav. 97. 
 
 (i) Nevyman v. Neumum, 26 
 Beav. 218. 
 
 (ft) Montague v. Sandvnch, 33 
 Beav. 324. 
 
 (Q SlocJcs V. Bcvrri, Johns. 54 ; 
 see also Taylor v. Taylor, 6 Sim. 
 246, as to a residuary bequest. 
 
 (m) Bernard v. Minshull, Johns. 
 276; 28 L. J. Ch. 649. "The 
 
OP PERSONAL PROPERTY. 165 
 
 This doctrine is well illustrated by a case decided shortly iiiastrative 
 after Bernard v. MimshuU, and which, for our present °^®' 
 purpose, may be thus stated : — A. testator bequeathed 
 legacies to A., B., C, and D., or their legal representa- 
 tives, to be paid to them two years after his death. He 
 then gave the residue of his property to his widow, ex- 
 cepting a sum of £4000 to satisfy the above legacies. 
 A., B., and C. died after the execution of the Will, but 
 in the testator's lifetime, and one question in this case 
 was, as to what became of their legacies. It was held on 
 appeal, affirming the decision of Kindersley, V. C, that, 
 notwithstanding the words " or to their legal represen- 
 tatives," the postponed legacies to A., B., and G, lapsed, 
 and as the sum previously mentioned, of £4000, was not 
 given as part of the residue, but as an exception out of 
 it, not for a,ll purposes, but only to benefit A., B., C, and 
 D., the shares of A., B., and C fell into the residue, and 
 did not go to testator's next-of-kin (n). 
 
 It may happen that a testator's Will contains no resi- Will with no 
 
 -rr • • r6sidu.£irv 
 
 duary clause at all, but that the WiU amounts to a universal clause. 
 disposition of his property. Thus, a testator owning realty " Principal 
 and personalty, bequeathed his "principal money" to ™a's"es lease- 
 his wife for life^ remainder to his children, but as he pos- ^^oUs and 
 
 11 ^^ » ■ ii i c other personal 
 
 sessed only a small sum ot money, in the true sense oi estate, 
 that term, a bill was filed to have the construction of the 
 Court of Chancery on these words, and it was held that 
 they carried all the testator's personalty, including lease- 
 holds, but not the freehold (o). 
 
 Here, as stated by Malins, V.C., since there was no Intention to do 
 
 foundation of this general rule in of the particular intent, the Court Signification of 
 
 respect of lapsed legacies is, that gives effect to the general intent. " the residuary 
 
 the residuary clause is understood 2 Wms. Exora. pt. 3, bk. 3, ch. 5, clause of a 
 
 to be intended to embrace every- § 1, 1459. But see Sir "W". Grant's ''"^'• 
 
 thing not otherwise effectually judgment in Cambridge v. Bov^, 
 
 given ; because the testator is sup- 8 Ves. 25. 
 
 posed to take the particular legacy (to) Thompson v. WMtelocTc. 4 De 
 
 away from the residuary legatee G. & J. 490 ; 28 L. J. Ch. 793. 
 
 only for the sake of the particular (o) Prichard v. Prichard, L. K, 
 
 legatee ; so that, upon the failure 11 Eq. 232 ; 40 L. J. Ch. 92. 
 
166 
 
 WILLS OP PERSONAL PROPERTY. 
 
 so inferred 
 from signifi- 
 cant facts. 
 
 Lowe T. 
 Thomas. 
 
 Uncertainty 
 as to the fore- 
 going rules of 
 construction. 
 
 Wliere tes- 
 tator directs 
 securities to 
 pass as "ready 
 money.'' 
 
 Ulustratiye 
 jjase. 
 
 residuaiy clause in the Will, and since the testator had 
 very little money — taking that word literally — and, 
 moreover, as he had made a comprehensive disposi- 
 tion of property of some kind in favour of his wife and 
 children, it was to be inferred that his intention was to 
 give them something more than the small amount of cash 
 which he possessed at his death. The Vice-chancellor 
 also expressed non-approval of the case of Lowe v. 
 Thomas (p), in which it will be remembered certain sums 
 of stock were held not to pass under the words " the 
 whole of my money." His Honour stated that he should 
 have held that, although that case was distinguishable 
 from the one just cited, inasmuch as in that there was a 
 residuary clause, while in Prichard v. Prichard there was 
 not ; yet he should have held the words "the whole of my 
 money," as used in Lovje v. Thomas, to have passed the 
 entire personalty. It seems, then, that the application 
 of the rules on this subject of construction is fraught 
 with difficulty and uncertainty. As a matter of fact, 
 much — even with precedents as guides — ^will depend upon 
 the view taken by each Court upon the circumstances 
 of each individual case, although of. course those es- 
 tablished canons, some of which we have endeavoured to 
 exemplify, cannot be departed from. 
 
 It is undoubtedly competent to a testator to direct that 
 any securities for money bequeathed by him, shall pass as 
 ready money, which, in the absence of such direction, would 
 not so pass ; and it has been held, that it is not necessary 
 that such a direction, to have effect, need appear in the Will 
 itself The following case is in point :— K. bequeathed 
 to his wife " all sum and sums of money that may be in 
 my house.'' Some shares of an insurance company were 
 found in a chest, in which the testator was in the habit 
 of keeping his cash, and these were enclosed in an enve- 
 lope whereon was written, "To be considered as ready 
 
 ip) 5 De G. M. & G-315 ; 23 L. J. Ch. 616 ; cited, ante, p. 163, note (e). 
 
OP PERSONAL PEOPEETY. 167 
 
 money, and given to Mrs. K. for her use." Held, that the 
 shares passed to her as ready money (q). 
 
 But the soundness of this decision, possessing as it does Authority of 
 the appearance of giving effect to an unexecuted docu- ^^outyui^ °^^' 
 ment dehors a Will, has been — though not judicially, 
 yet with much reason — questioned ; and the reader must 
 therefore look upon the case as one not altogether of 
 indubitable authority (r). 
 
 To sum up what has been previously said as to the Summary of 
 construction of the word "money, &c., &c.," in a Will, it ^°S"/„^ 
 must be observed that the rule of construction is, that construetion 
 this and similar words do "not extend beyond what is &c., &e!"^^' 
 literally ' money,' unless the context requires it " (s). 
 
 An instance of a testator employing words of a com- Another in- 
 prehensive and unmistakable character, is seen in the ^e^dy wide 
 case of The Midland Counties Rml/way Company v. phraseology. 
 Oswin (f). The expressions used here were, " I give and 
 bequeath all my money, goods, chattels, estates, and 
 effects, of what kind and nature soever, and wheresoever 
 the same may be found," and according to common sense, 
 it was held that his real estate passed under those 
 terms. 
 
 Reverting once mofe to the rule of ejusdem generis, The rule of 
 it may be stated for the information of the reader that it applies not 
 is applicable to the terms of other instruments besides ""^y *° ^'}^' 
 
 „■r■^^ -n • • T • c tut Other m- 
 
 WiUs. For mstance, it applies to the construction oi struments, 
 Acts of Parliament (u), and to persons (x), as well as ^^'^ J^l^™ 
 things, also to personal acts (y) ; to the construction of 
 assignments (z), trust (a), and other deeds, and of course also 
 to contracts, whether under seal or only by mere writing. 
 
 (?) Knight v. Knight, 2 Giff. 616 ; & E. N. S.) 452 ; 15 L. J. M. C. 33. 
 
 30 L. J. Ch. 644. [x) Sandiman v. Breach, supra, 
 (r) See 2 Taylor, Evid. § 1035. and Reg. v. Inhabitants of Whit- 
 Is) 2 Wms. Exors. pt. 3, bk. 3, nosh, 7 B. & C. 596. 
 
 oh. 2, § 4, 1191. (y) Palmer v. Naylor, 8 Ex. 
 
 (0 1 Coll. C. C. 74 ; 13 L. J. 739; 22 L. J. Ex. 329. 
 
 Oh. 209. («) Ee Wright's Trusts, 15 Beav. 
 
 {u) SaTidimam v. Breath, 7 B. & 376. 
 
 C. 98 ; Beg. v. NemUe, 8 Q. B. (A. {a) Clifford v. Arundell, 1 De G. 
 
WILLS OF PERSONAL PROPERTY. 
 
 A legacy due 
 to a testator 
 does not pass 
 by his WiU 
 under 
 
 " money " or 
 ' ' securities 
 for money." 
 
 A legacy is 
 equal to a 
 debt due to 
 the legatee. 
 
 General rule 
 for ascertain- 
 ing what 
 passes by a 
 residuary 
 .bequest where 
 the term 
 "moneys, &c." 
 is used. 
 
 Appointment 
 by will of 
 feme covert. 
 
 Case of no 
 residuary 
 clause. 
 
 Collins V. 
 Collins further 
 considered. 
 
 If A. in his Will says, " I bequeath to B. or his as- 
 signs, ^100," and then dies, this sum becomes vested in 
 B. at A.'s decease, and if B. die immediately after A., it 
 vests in B.'s executor or administrator (&). But if B., by 
 his own Will, bequeath to C. all his " money, and securi- 
 ties for money," the legacy of £100 would not pass under 
 that expression (c), for a legacy is neither money nor a 
 security for money, but only a debt due to the legatee 
 from the executor out of his testator's estate (c). 
 
 If, however, the testator, B., had said " I give the legacy 
 due to me by A.'s WiU," then, of course, under the above 
 circumstances, it would have passed by B.'s Will to C. 
 
 In the course of his judgment in the case cited be- 
 low (c). Sir J. Komilly, M. K., stated that where a testator 
 directs all his debts and funeral and testamentary expenses 
 to be paid out of his moneys and securities for money, 
 and at the same time makes a general residuary bequest 
 of the whole of his remaining property, then it was clear 
 that " moneys and securities for money," will not include 
 the general residue, because the testator has himself given 
 a definition of what he means to be therefrom excluded. 
 His Honour also stated that this would also apply to the 
 Will of a feme covert, made in the exercise of a power of 
 appointment. 
 
 Sometimes, however, a case occurs in which it appears 
 that the residue of property is not disposed of at all, 
 even where tolerably extensive words are employed in 
 the Will, apparently with a view to effect the con- 
 trary. This was so in Collins v. Collins, previously 
 cited {d), and which aptly illustrates the point now under 
 notice. That case was as follows : R C, by his Will, 
 made in 1862, after giving various legacies amounting 
 to £1700, bequeathed to his daughter, S., another legacy 
 
 F. & J. 307 ; SopTcinson v. Lush, 
 34 Beav. 215. 
 
 (6) See 11 Yin. Abr. 166, and 
 on the subject of vesting, 1 Bop. 
 Leg. Ch. 10, p. 550, and read the 
 
 somewhat singular case of Lucas 
 V. Garlvm, 2 Beav. 367. 
 
 (c) See III re Mason's Will, 34 
 Beav. 494 ; 34 L. J. Ch. 603. 
 
 id) P. 163, note (h). 
 
OF PERSONAL PEOPEllTY. 169 
 
 of £3000, and " all things remaining, of whatever kind, 
 and all moneys, both in the house and out of it for her 
 own use." He next gave his granddaughter, H., £100, 
 for her attention to him, and finally appointed his son 
 sole executor of his Will. It was contended on the part Arguments 
 of S., that the above expressions must be taken as indicat- ^™''' 
 ing the testator's intention to pass his residue, to her, 
 because were it not so, there would be an intestacy as to 
 the rest of his estate which consisted of various amounts, 
 one of which was a sum of £7000, invested in consols. 
 For the testator's next of kin, on the other hand, it was 
 argued that there was nothing to show an intention on No intention 
 the testato/s part to mark out, or even mention, his rggX*""^' 
 residuary estate ; moreover, that the gift of the £100 to 
 his granddaughter, after using the comprehensive words 
 in favour of S., strongly showed that he did not mean 
 those woijds to affect the remainder of his property. 
 This argument prevailed ; the residuary estate was 
 held to be undisposed of by the Will, and accordingly to 
 belong to the next of kin. The gift to S., it is perceived, 
 was merely specific, since there were no words in the Will 
 which showed an intention of the testator to make a dis- 
 position of his residue, although it is not improbable that 
 he really had meant to give it to S. 1 
 
 By a bequest of "railway shares," all stock held Railway Shares 
 in the railway indicated will pass (e). At one time, 3"^,^,]^,*'™^ 
 however, this would not have been so, because it was 
 thought that railway stock was in its character analogous 
 to stock in the funds, and that therefore " stock," would 
 not, in a bequest, answer the description of "shares." 
 But, as pointed out by Lord Chancellor Cairns in the case 
 cited below (e), to suppose that there is any difference no difference 
 between railway " stock " and railway " shares " is an error I'f*^^^™" ^nd 
 founded on the supposed analogy above mentioned. They "stock" in 
 are in fact identical in their nature, since stock, as ^eques™^ 
 
 (e) Morrice v. Aylmer, L. E. 10 Ch. 148 ; 44 L. J. Ch, 212, overruling 
 Oakes v. Oakes, 9 Hare, 666. 
 
170 
 
 WILLS OF PERSONAL PROPERTY. 
 
 " Shares " 
 passes Stock, 
 ■where testator 
 has no shares 
 but stock only. 
 
 A shareholder 
 is equal to a 
 stockholder 
 in law. 
 
 The construc- 
 tion of words 
 may vary with 
 the progress of 
 civilization. 
 
 "Stock" 
 as applied to 
 property in 
 shares a 
 modem word. 
 
 No analogy 
 between stock 
 in the funds 
 and that of a 
 railway or 
 other company. 
 
 remarked by Lord Justice James, is nothing more than 
 " the thing into which the shares have been consolidated." 
 
 But even before this case, it was held that shares in a 
 railway would pass under the word " stock," where the 
 person making the bequest had no shares at all, in the 
 literal sense of that word, but stock only, and that too 
 where there was an ambiguity in the description of the 
 railway company in which such stock was possessed (/). 
 
 Accordingly, "stock " and " shares " may now be con- 
 sidered as convertible terms when occumng in a bequest, 
 and, therefore, a gift of " shares " will carry stock, and 
 vice versd. Of course it does not foUow that a man pos- 
 sessing shares necessarily has stock, but if he own shares 
 in their aggregate form, in other words stock, he must 
 necessarily own them in their individual character, and it 
 may be further stated that every stockholder in a com- 
 pany is a shareholder, though every shareholder is not, 
 in consequence, a stockholder. 
 
 In addition to the points of testamentary law decided 
 in these two cases, we see from them, that the construction 
 placed on words is liable to vary according to the advance 
 made by civilization. The case of Oahes v. Oakes, was 
 decided in 1850, by Sir G. Turner (then Vice-Chan- 
 cellor), one of the most consummate lawyers of our own, 
 or any other age. At that time, however, the word "stock," 
 as used to denote the consolidation of shares in a company, 
 was of comparatively recent introduction , since the first time 
 we find it so employed, at any rate in an Act of Parlia- 
 ment, is in sect. 61 of the Companies' Clauses ConsoUdation 
 Act, 1845. Then, and for some time afterwards, it was 
 thought, as before stated, that this word " stock " denoted 
 something similar in character to the public funds ; but, 
 as clearly shown by Lord Cairns, between the former and 
 the latter of these two subjects of property, there exists 
 no real resemblance. " It is possible," his Lordship pro- 
 ceeded to say, " that debenture stock in a company may 
 
 ,(/) Tnndery. Trinder', L. E. 1 Eq. 695. 
 
OF PBRSONAL PROPERTY. 171 
 
 be said to have some analogy to stock in the public funds ig), Whether there 
 but the joint-stock capital of a company is a perfectly putiiSTfands ^ 
 different thing from stock in the public funds." {g) and debenture 
 
 The Wills Act of 1838, in. its first section, declares that ^^^^ ^^^ 
 " securities for money (not being real estates)" shall be "eeourities^ 
 accounted as personal estate. This being so, the query pro- °' ^°^^y- 
 pounded by Vice-ChancellorMalins mHofhims Y.Abbott(h), 
 — "What then is a security for money ? " must now be 
 answered ;- for, although we have spoken of securities for 
 money, we have not at present stated precisely what these 
 really are. The first security to be noticed is that of a 
 mortgage ; but in mentioning this we at once encounter 
 what looks like a difficulty, for the Act mentioned above 
 says that the security must not be real estate. Now a 
 mortgage debt may be secured on real as well as on 
 personal property, hence our difficulty. 
 
 It is important, as observed by Mr. Serjeant Eussell in his Mortgagee's 
 argument in the case of Oalliers v. Moss, — now, however, no janXmort- 
 longer an authority on the precise point which it decided in gaged. 
 
 (g) But this also, it may "be re- case it will pass from hand to hand 
 marked with deference, is rather like a bank note.. But Government 
 doubtful, for Government stocks are stock certificates are not thus trans- 
 onlyperpetualannuities, redeemable ferable, consequently, it seems on 
 by the Government, but not by the all these considerations,.the analogy 
 fundholder or annuitant. The term even between Debenture stock of a 
 "stock" even used iu connection company and Government stock, if 
 with the funds is by no means an any there be, is of a somewhat re- 
 ancient one, since it was not so mote character. See the following 
 known in this country before 1688, cases, as to debentures, by way of 
 and therefore not to the old common illustration : — In re the Marine 
 law. Government stock is per- Mansions Co., Limited, L. E. i Eq. 
 sonalty by statute. Debenture 601 ; 37 L. J. Ch. 113 ; In re 
 stock of a company is not like Panama, New Zealand, &c.. Royal 
 Government stock a mere annuity. Mail Co., L. R. 5 Ch. 318 ; 39 L. 
 but is a specific and primary charge J. Ch. 482 ; In re Cfeneral Estates 
 upon the company's property. This Co., &c. <&c., L. R. 3 Ch. 758 ; In 
 right to debenture stock may be re the Imperial Land Co. of Mar- 
 evidenced by ordinary bond, or it seilles. Ex parte Debenture Holders, 
 may be a mortgage debenture, or it L. E. 11 Eq. 478 ; 40 L. J. Ch. 93. 
 again may be by an instrument (A) L. R. 19 Ex. 222 ; 44 L. J. Ch. 
 purporting to be a debenture, but 319. 
 yet made payable to bearer, in which 
 
172 WILLS OE PERSONAL PEOPERTY. 
 
 connection with our present subject — " to consider the in- 
 terest of a mortgagee in land moi-tgaged to him. He 
 has not any beneficial interest (i), but is merely a bare 
 trustee for the mortgagor." If, therefore, A. mortgage his 
 fee simple estate, or say his shares in iX railway company, 
 to B. for the loan of a sum of money, this transaction, 
 in the contemplation of Equity, amounts simply to the 
 deposit of a security by A. for the repayment of his debt. 
 A mortgage in contemplation of law, on the other hand, 
 is a different thing, for although it is a security 
 created by the debtor, yet it amounts to a transfer 
 of the absolute ownership of the property, subject to be 
 defeated on the discharge of the debt at a certain time. 
 Accordingly, the rule of law is that unless the debt be 
 paid at that time, the mortgagee secures the mortgaged 
 property for himself (k). Equity, on the other hand, holds 
 that although the subject of a mortgage in fee descends 
 to the mortgagee's heir, yet it is only a chattel interest, 
 and a personal estate belonging to his personal represen- 
 tatives, for whom the heir is accounted a trustee (l). 
 All mortgage We may repeat that, ," the law is now clearly settled, 
 personalty. that whatever be the form of the mortgage, it will be 
 part of the personal estate of the mortgagee. Conse- 
 quently, if the mortgage be in fee, the heir or devisee of 
 the mortgagee will be a trustee of the land for the executor 
 or administrator, and will, upon application, be directed to 
 convey to him " (m). Thus, according to the doctrine of 
 Equity, a mortgage debt is an interest of a personal cha- 
 racter in realty, and the debt which is due from the mort- 
 gagor to the mortgagee — although it maybe secured onrealty 
 — belongs to the latter's personal representative as assets. 
 
 (i)9B.& 0.275.(1829). But read 267; 7 L. J. K. B. 109, is now 
 
 the arguments of Mr. Camptell and virtually overruled, except perhaps 
 
 Mr. Talfourd on the main point as to showing that "securities for 
 
 of the case. money " standing alone and unex- 
 
 (ifc) Wms. R. P. pt. i, eh. 2'; plained, will not pass the legal es- 
 
 > Sm. E. & P. P. 373. tate of a mortgage in fee. Sxparte 
 
 {I) Sm. E. & P. P. 376, 399, 414. Cauiley, 22 L. J. Oh. 391. 
 
 (m) Qalliers v. Moss, 9 B. & 0. 
 
OF PERSONAL PROPERTY. 173 
 
 The parenthetical words, " not being real estates," do not Explanation of 
 then concern mortgages, but were inserted to exclude those ^°i estates." 
 securities for money which, if undisposed of, passed to the 
 heir, as for instance. New River shares, and some other 
 securities made of the nature of realty. Accordingly, even intention of 
 under an unexplained bequest of " securities for money," not par*amount. 
 only all such things as properly come under that denomina- 
 tion, wUl pass as part of the testator's personal estate ; but also 
 a mortgage in fee, although a debt secured on real estate, will 
 so pass, unless the testator indicates by his WiU that under 
 the word " securities " he means to except his mortgages in 
 fee, when the Court will give effect to his intention. Of Expressions 
 
 11 1 • , 1 1 1 • indicative of 
 
 course where he uses such an unmistakable expression as intention. 
 "mymortgages and other securities," this a /oriiori will carry 
 the legal fee (n) ; or, " all moneys upon mortgages " (o), or 
 " all goods, chattels, personal estate and effects, whatsoever 
 and wheresoever, to hold to A., his executors, adminis- 
 trators, and assigns, he paying thereout all debts " (p). 
 Again, where a testator employs words comprehending every 
 species of personal property, and concludes in these terms 
 — " and every other my personal estate and effects whatso- 
 ever and wheresoever, upon trust, to get in my debts, and 
 to sell my personal estate, and hold the money arising there- 
 from on the trasts mentioned," these words will carry his 
 legal estate in a mortgaged fee to his trustees (g). 
 
 The doctrine enunciated in Galliers v. Moss, namely, that Gallkrs v. 
 the words " securities for money" are not sufficiently strong virtually 
 to pass the legal estate in a mortgage in'fee to executors, must overruled, 
 therefore be considered as so far, modified by subsequent de- 
 cisions, as to be practically overruled by them. This appears Casetoshoy 
 very conspicuously in the case of Knight v. Robinson (r), 
 with a notice of which we will, for the present, take leave of 
 
 («) Senvoise v. Cooper, 6 Madd. & S. 644 ; 21 L. J. Ch. 673, which 
 
 371 ; see also Mather v. Thomas, 10 is a very strong case against Galliers 
 
 Bing. 44 ; 2 L. J. C. P. 234 ; ex v. Moss, 
 parte Barter, 5 Sim. 451. (q) In re Walker's Estate, 21 L. J. 
 
 (o) Doe d. G^iest v. Beimett, 6 Ch. 674. 
 Ex. 892 ; 20 L. J. Ex. 323. (r) 2 Kay & J. 503^1858). 
 
 (p) In re Kirig's Estate, 5 De G. 
 
 this. 
 
174 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Recapitulatory 
 remarks. 
 
 Mortgages of 
 leaseholds or 
 other chattels 
 real, 
 
 go to the 
 personal re- 
 presentative. 
 
 Equitable 
 mortgage. 
 
 May be made 
 without 
 writing ; 
 
 Mortgage of 
 
 gavelkind 
 
 land. 
 
 the present subject. There, the testator bequeathed all his 
 money, securities for money, household furniture, and all 
 other the rest and residue of his personal estate and effects, 
 subject to the payment of his debts, to his wife. Departing 
 from Galliers v. Moss, it was held, not only that the legal 
 estate in certain mortgaged hereditaments vested in the 
 testator at the date of his Will, passed under the expression 
 " securities for money," but that the concurrence of the testa- 
 tor's heir was not necessary to enable an effectual convey- 
 ance of the mortgaged premises to be made to a purchaser. 
 
 We may therefore state that the law is now settled that 
 under the words "securities for money, not only will the 
 money secured on mortgage pass, but also the legal estate 
 in the land mortgaged, if such appear from the terms of 
 a Will to have been the testator's intention." (s). 
 
 We have hitherto spoken of a security for money 
 created by a mortgage in fee. If the mortgage be of a 
 leasehold — which being a chattel real, and therefore per- 
 sonalty — or of any other subject of personal estate, there 
 can be no doubt as to how such a security as this will go 
 under the words "securities for money," even if standing 
 alone. It will, as a matter of course, devolve upon 
 the executor or administrator of the mortgagee, and form 
 assets in his hands. 
 
 There is yet one more species of mortgage which re- 
 quires mention, namely, that which is termed an equitable 
 mortgage. This is created by one person depositing with 
 another, or with some person in trust for him, title or 
 other deeds, or other valuable documents as a security 
 for money lent (t). An equitable mortgage may be created 
 either with or without writing ; and if the loan be granted 
 
 (s) " The residue of real property 
 and securities," will also pass the 
 legal estate of mortgaged property 
 of gwodkind tenure. In re Field's 
 Mortgage, 9 Hare, 414 ; 21 L, J. 
 Ch. 175. 
 
 (t) As iEustrative cases of equit- 
 
 atle mortgages, see EyreY. McDowell, 
 9 H. L. 619 ; Wylde v. Radford, 
 
 33 L. J. Ch. 51 ; Mason v. MorUy, 
 
 34 Beav. 471, 475 ; 34 L. J. Ch. 
 422 ; Newton v. Newton, L. E. 4 
 Ch, 143 ; 38 L. J. Ch. 145. 
 
OF PERSONAL PROPERTY. 175 
 
 simultaneously with the deposit, the mortgagee has a lien 
 upon the securities parted with by the mortgagor, and the 
 former may retain them until the money borrowed is re- 
 paid. The lien thus created on the documents may be 
 discharged by the mortgagor repaying his debt, or by an 
 order for their sale, in the event of his not being able to 
 do so. Although we have stated that an equitable mort- but is more 
 gage may be created without writing, yet, if there be no in™ ritingT^ ™ 
 written evidence thereof, it is said that the mortgagee, 
 should he require a sale of his security by reason of the Y^7 '* should 
 
 ^ . . . be m writing. 
 
 mortgagor's bankruptcy, he will not, if he have no writing 
 to produce, be allowed his costs in the matter (u). 
 
 It wiU probably appear to the reader that these The Statute of 
 equitable mortgages of title deeds, which are very com- not control 
 mon, are in contravention of the 4th sect, of the Statute of ^q'^'able 
 Frauds, 29 C. 2, c. 3 ; but it has been expressly held that, though made 
 notwithstanding this statute, an equitable mortgage of ^yp^™!- 
 any kind will be upheld in favour of the mortgagee (a;). 
 
 Equitable mortgages may exist upon personalty (y) as Equitable 
 well as realty, by the deposit of securities appertaining ^"^^on^^e™^^ 
 thereto, and they may also be created on deeds in the sonaity as well 
 hands of a third person (0). 
 
 The same rules of construction which we have stated Buies of con- 
 
 ,, TiTi T _L 1x1 • struction as to 
 
 to be applicable to ordinary mortgages when there is a words "secu- 
 question whether they will pass under a bequest of secu- "''"^ *°f 
 rities for money, are alike applicable to equitable mort- applicable to 
 gages, and this being so, we need no further consider the ^^^^ ^'"^' 
 
 present portion of our subject. 
 
 Eeplying once more to the inquiry — What are securities Kesumption of 
 for money? it may be stated that government stock, bonds, !^^X''t'are^ 
 bills of exchange, and promissory notes are also dis- "securities 
 tinctly such, and accordingly, would pass as such in a °''"'™^y- 
 Will, even in the absence of any explanatory context. 
 
 (m) 5 Jarm. & Byth. Conv. 122. , Eq. 674. 
 
 See, as to the sale of mortgages in {y) See Bx parte Sunt, reAmner, 
 
 bankruptcy, Riiles 78-81 under the 1 Mont. Dea. & De G. (Bank.) 139. 
 
 Bankruptcy Act, 1869. (2) Mx parte Ileathcote^ re Og- 
 
 {x) Russell V. Russell, 1 L. C. lurne, 2 id. 711. 
 
176 
 
 WILLS OF PERSONAL PKOPEETY. 
 
 Glioses in 
 action. 
 
 Were not 
 formerly 
 assignable at 
 law, except by 
 and to the 
 Crown. 
 
 Present state 
 of the law on 
 the subjeot. 
 
 Assignee of a 
 chose in action 
 takes it sub- 
 ject to prior 
 equities. 
 
 Property in personal chattels may, as we have seen, be 
 either absolute or qualified, and it may exist either in pos- 
 session or in action, a statement which introduces us to a 
 consideration of the well-known legal term, chose in action. 
 This may be defined as a right to a thing not actually in 
 possession, but which, if withheld from the person entitled 
 thereto, can be recovered by an action at law, or rather, to 
 speak more correctly, now by an action in the High Court 
 of Justice. From the circumstance that it was and is only 
 so enforceable, the name chose in action is derived. 
 
 Before the recent Judicature Acts, these choses in 
 action, with the exception of negotiable instruments, 
 were not assignable at law, except to or by the Sovereign, 
 so as to enable the assignee thereof to sue on them in his 
 own name (a). Now, however, where a person wishes 
 to assign a legal chose in action, he may do so, pro- 
 vided such assignment is absolute, is in writing under 
 his hand, does not purport to be by way of charge only, 
 and provided that express notice of the assignment is 
 given in writing to the debtor, trustee, or other person 
 from whom the assignor would have been entitled to receive 
 or claim the chose in action. The assignee thereupon 
 stands in the place of the assignor ; but the assignment, 
 except in the case of a negotiable instrument, is subject 
 to all equities which would have been entitled to priority 
 over his acquired right, if the Judicature Acts had not 
 passed (&). 
 
 (a) A bankrupt's rights in aotion 
 become vested in the trustee under 
 the bankruptcy ; 32 & j33 Vict. c. 71, 
 s. 4, The Bankruptcy Act, 1869. 
 A bail bond may be assigned by 
 the sheriff to an execution creditor, 
 in the presence of two witnesses, 
 so as to enable the creditor to sue 
 on such bond as obligee thereof, in 
 place of the sheriff. 4 & 5 Anne, 
 c. 16, s. 20. 
 
 (6) Jud. Act, 1873, sect. 25, 
 
 sub-sect. 6 (36 & 37 Vict. c. 66). 
 This is only an affirmation of the 
 doctrine previously held. See, as 
 to equities, the cases of Ord v. 
 White, 3 Beav. 357 ; Ma-ngles v. 
 Dixon, 3 H. L. Cas. 702; 8mith-y. 
 Parkes, 16 Beav. 115. And see 
 genei-ally, as to assignments as 
 viewed in Equity, the chapter on 
 "Specific Performance" in Sm. 
 Man. Eq. 
 
OF PEESONAL PEOPERTY. 177 
 
 Ghoses in action -were also, before the recent Judi- Legal and 
 cature Acts, divided into two classes, legal and equit- ^^"**'^'® 
 able ; the former having been such as were recover- aaion. 
 able by action at law — the latter by suit in equity. 
 A debt, for instance, as it was always enforceable by an 
 action at law, was called a legal chose in action; but a 
 legacy of money, unassented to by an executor, was only 
 to be secured when withheld by a suit in equity, and so 
 was called an equitable chose in action. The forum, then, 
 in which the remedy for enforcing the rights in question 
 was to be taken, determined to which of these two classes 
 choses in action belonged. 
 
 Subject, however, to the provisions in the Judicature All cAoses in. 
 Acts as to which Divisions of the High Court of Justice tind now. 
 shall adjudicate upon certain causes and matters, there 
 appears to be no longer any distinction between an equit- 
 able and a legal chose in action. In Equity, however^ TSo chose in 
 
 IP .1 aj.*_l"j.i 1 J 7, • J.' action except 
 
 beiore these Acts, it is to be observed, a chose %n action a negotiable 
 was always assignable even without writing ; but now, as instrument, 
 we see, all assignments of choses i/n action, except ne- assigned with- 
 gotiable instruments, are required to be made in writing. ""* writing. 
 
 When it said that a chose in action was not assignable Former mode 
 at law, it must be remembered that this only meant that chose in action 
 the assignee of a transferred chose in action could not *tia.w. 
 as of right sue thereon at law in his own name. Accord- 
 ingly, in order that he might have done so, it was usual 
 for the assignor, at the time of the assignment, to give the 
 assignee a power of attorney — which was not necessarily a 
 deed, but might have been only a parol authority — to enable 
 him to use,,if necessary, the name of the assignor (c). 
 
 AH property in action depends entirely upon contracts, Chom in 
 
 (c) An instance of this may be and an agreement to permit the 
 
 seen in the following cases : — assignee to make use of the as- 
 
 Howell V. Mclvers, i T. E. 690 ; signer's name, and if the assignor 
 
 Heath v. Mall, i Taunt. 326 ; Ger- refused to allow his name to be used, 
 
 rard v. Levns, L. R. 2 C. P. 305 j the assignee could have then sued in 
 
 36 L. J. C. P. 173. This form of equity. Hammond v. Messenger, 9 
 
 assigning a chose in action was in Sim. 327 ; 7 L. J. Ch. 310. 
 the nature of a declaration of trust. 
 
178 
 
 WILLS OF PERSONAL PROPERTY. 
 
 actwn 
 arise from 
 contracts 
 express or 
 implied. 
 
 Wilis Act, 
 1838, does 
 not enable 
 tlie legatee of 
 a chose in 
 action to sue 
 upon it in his 
 own name. 
 
 Lord Camp- 
 bell's opinion 
 on this point. 
 
 Executor is in 
 loco teetatoris 
 with regard to 
 
 action. 
 
 Administrator 
 stands in the 
 place of an 
 intestate 
 person in the 
 same way. 
 
 The same 
 where no 
 
 express or implied, which are the only regular means of 
 acquiring choses in action; these are, in fact, things 
 which are rather in potentia than in esse, though the 
 owners may have as absolute a property in, and be as 
 well entitled to, such things in action as to things in 
 possession (d). 
 
 The Wills Act, 1838, does not, it has been decided, 
 enable a testator to bequeath a chose in action, so as to 
 enable the legatee thereof to sue upon it in his own 
 name (e) ; the executor, as standing in the testator's place, 
 is the proper person to sue, although the right to do this 
 is, as a right, undoubtedly a bequeathable interest (/). 
 
 " The Wills Act, 1838, never was intended to have any 
 operation to make anything bequeathable as personal 
 estate which might not have been previously bequeathed. 
 It only provides a mode for executing Wills; and with 
 respect to real estate, a clause is introduced making 
 things devisable which before were not so, such as rights 
 of entry, which may now pass by Will. But there is 
 nothing to indicate an intention of enabling a party to 
 bequeath a chose in 'action, so as to pass the right of 
 suit" to the legatee (g). 
 
 We have quoted the words of Blackstone, to the effect 
 that all choses in action must arise from contracts, express 
 or implied, but the term chose in action, however, is equally 
 applicable to the right to recover damages for a tort as 
 for a contract. Now the executor or administrator of a 
 deceased person stands precisely in his place in all mat- 
 ters of contract, so that should there be due to him any 
 debts of record, or on specialty or other contracts, bonds, 
 bills or notes, these may all be enforced by a deceased 
 person's executor or administrator, precisely as they 
 might have been by himself. " Thus, if money be pay- 
 
 (d) 2 Black. Comm. 398. 
 
 (e) Bishop v. Curtis, 18 Q. B. 
 (A. & E. N. S.) 879 ; 21 L. J. 
 Q. B. 391. 
 
 (/) Gresley v. MousUy, 4 De G. 
 & J. 78 ; 28 L. J. Oh. 620. 
 
 {g) Per Lord Campbell, C. J., in 
 > V. Curtis. 
 
OF PERSONAL PROPERTY, 179 
 
 able to B. without naming his executor, yet his executor representatiye 
 or administrator shall have an action for it. So, if money '^ "*"^'^' 
 be payable to A. or his assigns, his executor shall take 
 it, for he is an assignee in law " Qi). This being so, if A. Legatee of a 
 bequeath to B. all his securities for money, and name C. ^°'! " "^*'°"' 
 his executor, any bills, notes, &c., which pass to B., under ^^^ name of 
 the bequest, must be sued on, if they are not paid, not by or adrnTnls-"^ 
 B., but by C. the executor, who will then hand the proceeds ''^^*°'^- 
 of them to the legatee. 
 
 It is stated in a work of high authority that " although Until recently 
 the deceased has, in his lifetime, assigned all his interest in ^t^^^" *" 
 his choses in action, still, upon his death, they will vest, whether 
 at law, in his executor or administrator, because, at law, ^sl^ed or 
 choses in action are not assignable. Thus, if a bond be ''°*' ^^^^^ in 
 assigned by an intestate, his administrator only is entitled 
 to sue upon it " {%); and the assignee attempting to do 
 so, he would, until recently, ifc appears, have been non- 
 suited (i). 
 
 But, as we have seen, the Judicature Act, 1873, makes This mte 
 all chases in action assignable, so as to enable the assignee tht^judicatwe 
 thereof to sue upon them in his own name ; consequently, -^ct, 1873, if 
 assuming that there exist no countervailing equities against has been made 
 the assignee, the chose in action must now vest in him tli^ieunder. 
 for all purposes. As between a testator and a legatee of 
 a chose in action, the case is necessarily different, for the 
 reason that no directions contained in a Will can operate 
 as an assignment of a chose in action to a legatee, because, 
 as before remarked, the above Statute contemplates only 
 transactions inter vivos, and a Will cannot take effect until 
 after the death of the testator. 
 
 It must not be inferred from the passage which has How Equity 
 been quoted from Williams on Executors, that because r^a?ded'*'the 
 choses in action, transferred by a deceased person before assignment o£ 
 
 a chose in 
 action, 
 (h) 1 "Wms. Exors. pt. 2, bk. 3, p. 136 of this work, 
 cli. 1, § 1, 789 ; and as to what is (i) 1 "Wms. Exors. pt. 2, hk. 3, 
 
 an assignee in law, see note {h) ch. 1, § 2. 843, Sii, 
 
 N 2 
 
180 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Contingent 
 interests, pos- 
 sibilities, and 
 expectancies. 
 
 The right of 
 the assignee 
 was not in the 
 nature of a 
 trust. 
 
 The transferee 
 was regarded 
 as an agent 
 or attorney. 
 
 Intention to 
 appropriate 
 chose in acUoji 
 readily in- 
 ferred and 
 acted upon in 
 Equity. 
 
 The Common 
 Law rule on 
 this subject 
 always con- 
 sidered un- 
 satisfactory. 
 
 his death, vested in the executor or administrator, that 
 their value was thereby lost to the assignee. The assign- 
 ment of a chose in action veas always considered in Equity 
 as a transaction '' amounting to an agreement to permit 
 the assignee to make use of the name of the assignor at 
 law, in order to recover the debt, or to reduce the property 
 into possession ; or as a contract entitling the assignee to 
 sue in equity in bis own name, and enforce payment of 
 the debt directly against the debtor, whether he had 
 assented or not, making him, as well as the assignor, if 
 necessary, a party to the bill. And assignments of con- 
 tingent interests, possibilities, and expectancies, were re- 
 garded in Equity as amounting to a contract to assign, 
 when the interest became vested ; and when the interest 
 did so become vested, the claim of the assignee was 
 enforced, not, indeed, as a trust, but as a right under a 
 contract " (k). 
 
 The transferee of a chose in action was, in fact, regarded 
 by Equity as an agent for the transferor with regard to 
 the exercise of the right of recovery transferred, and the 
 Court of Chancery always laid hold of, and gave effect to, 
 any circumstance indicating an intention by one person 
 to appropriate a chose in action to another, as an equitable 
 assignment thereof The Judicature Act, 1873, embodies 
 the doctrine of Equity in these matters, but expresses it 
 in a more direct manner than that in which hitherto it 
 appears to have been declared. 
 
 The old and obstructive rule of the Common Law on 
 this subject was, long ago, looked upon as unsuited to 
 the requirements of advancing civilization, even by some 
 great masters of that system of jurisprudence. Thus, we 
 find Mr. Justice Buller — when speaking of the assignment 
 of a chose in action in connection with maintenance (I), — 
 
 (fc) Sm. Man. Eq. 241, " Specific or assisting either party with money 
 
 Performance." or otherwise, to prosecute and de- 
 
 (Z) Maintenance " is an officious fend it." 4 Black. Comm. 134. 
 Smtermeddling in a suit that no Champeirty is a species of main- 
 way bdoiigs to one, by maiataiiiing teaanoe, and both are deemed 
 
OF PEESONAL PROPERTY. 181 
 
 temarking that " the good sense of the rule " as to the Opinion of 
 
 impossibility of assigning this chose in action, "seems to BuUer, j., in 
 
 me very questionable." Again, he says, " Courts of Equity, MiUer. 
 
 from the earliest times, thought the doctrine too absurd 
 
 for them to adopt, and, therefore, they always acted in 
 
 direct contradiction to it; and we shall soon see that 
 
 Courts of Law also altered their language on the subject 
 
 very much " (m). His lordship then proceeds to show in 
 
 what cases Courts of Law departed from the strict letter 
 
 of the absurd rule, upon which they professed to, but 
 
 could not always, act. 
 
 The spirit of this rule of the Common Law has, in Rule of fte 
 accordance with these opinions, been gradually de- now aboiishld. 
 parted from, and, in 1845, the legislature passed an Act 
 which provided that, after the 1st of October in that year, 
 contingent, executory, and future interests and possi- 
 bilities, if coupled with an interest — except those expectant 
 in an estate tail — and also rights of entry in tenements or 
 hereditaments, might be alienable at law by deed {n). 
 Before this statute, such rights as contingencies and possi- 
 bilities were only assignable in equity, or bound at law by 
 way of estoppel (o), or releasable by devise ; but now, ^^^ "s^*^ ""'^ 
 rights of entry, and all contingent, executory, and future 
 interests in any real or personal estate, are also devisable 
 by virtue of the Wills Act, 1838 {f). 
 
 A chose in action is, then, a personal right in action or Eights, 
 suspense, and, as it includes debts, we may, therefore, 
 further discuss the matter in connection with the three 
 subjects of personal estate remaining to be noticed, namely, 
 rights, debts, and credits. 
 
 The first of these terms is one of immense comprehen- Signification 
 
 of the term, 
 
 offences against public policy— that L. K. 2 C. P. 272 ; 36 L. J. C. P. 134 
 
 is, for the public good or safety — («) 8 & 9 Vict. o. 106, s. 6. 
 
 and are punishable at Common (a) See Bendey v. Bwrdon, 2 Sim. 
 
 Law and by statute. -See 32 H. 8, & Stu. 519; 8 L. J. Ch. 85. As 
 
 0. 9. to the assignees of covenants and 
 
 (m) Master v. Miller, 4 T. E. conditions running with land, see 
 
 320 ; 2 H. Bl. 140 ; , Judgt. of Spe.ncer's Case, and the notes 
 
 BuUer, J. ; also in 1 Sm. L. C. thereto, in 1 Sm. L. C. 
 
 E. g., see also Brown t. Bateman, (p) 1 Vict. c. 26, s. 3. 
 
183 
 
 WILLS OF PERSONAL PROPERTY. 
 
 The Tarious 
 classes of 
 rights. 
 
 What rights 
 previously 
 belonging to 
 a person de- 
 volve upon 
 his executor 
 or adminis- 
 trator. 
 
 An executor 
 stands in the 
 jdace of his 
 testator for 
 most purposes. 
 
 Upon what 
 rights an 
 executor may 
 sue and be 
 sued. 
 
 siveness, and a discussion on its full import would be out 
 of place here. The Latin word jus, corresponding to our 
 word "right," is stated to have had nearly forty distinct 
 significations {q), and it may be safely asserted that 
 " right," in our law cannot, as regards its abstract sense, 
 be defined. However, for present purposes, the following 
 are fair descriptions of the ordinary meaning of a right 
 in the laws of England, which appertain to property : — 
 " A liberty of doing or possessing something consistently 
 with law " {r), or, again, it is an interest which a person 
 actually has in any subject of property entitling him to 
 hold it or relinquish it at his pleasure (s). Thus, we have 
 such terms as rights of the subject, common rights, rights 
 of entry, public rights, rights of individuals, absolute rights, 
 contingent rights, rights of action, and a host of others. 
 
 Now there are certain of these rights made by statute 
 personal property, which are as such bequeathable, as we 
 have seen, by Will, and which are not extinguished by the 
 fact of their owner dying intestate. We must now proceed 
 to note such as belonging to a man during his lifetime do 
 not die with him, but survive to his personal representative, 
 whether executor or administrator. 
 
 The great principle to be kept continually in mind when 
 considering this subject is, that an executor stands in the 
 place of his testator,and that many rights which were in him 
 duly vested, are also vested in his executor or administrator. 
 " An executor or administrator may sue upon all per- 
 sonal contracts made with the testator, in respect of 
 damages accrued to the personal estate from the breach of 
 them, and whether the breach occurred before or after the 
 testator's death ; but for breaches of contract which affect 
 the person of the testator only, and not his transmissible 
 personal estate, as a breach of promise to marry, where 
 there is no special damage to the estate, an executor or 
 
 (q) Tay. Civ. Law, 40, 
 {r) Whart. L. Lex. 
 {s) Burr. L. Gloss. See, as to 
 jBights, Austin's Provinee of Juris- 
 
 prudence Determined ; Bentham, 
 Princ. Civ. Code ; Taylor, Civ. L. ; 
 Co, Litt. 29a, n. 6 ; 265a, 3456 ; 
 1 Black. Comm. bk. 1, cli. 1. 
 
OF PERSONAL PROPERTY. 183 
 
 administrator cannot sue " (t). The right to sue for Personal 
 assault, false imprisonment, or libel, although vested in an™^aii^t 
 the testator himself, will not devolve on his personal re- J'^^*^*'"" cannot 
 
 •^ be redressed by 
 
 presentatiye, because the general rule of law is Actio his executor. 
 ■ personalis moritur cum persond, and "an executor can- -ictioper- 
 not sue upon contracts the breach of which is a mere cumfersmd. 
 personal wrong" (u). The rule of the Common Law 
 embodied in the above maxim applies as well to personal 
 wrongs committed hy the testator, or intestate, as those 
 committed against him, and the reason of the rule, as 
 regards the personal representative's liability in such 
 cases, appears to be that, no one could possibly tell how 
 actions founded on the above torts might have been an- 
 swered by the deceased himself ; whereas every specific 
 contract implies a promise to perform it, and the breach Contracts. 
 of any contract is ipso facto a ground of action thereon. 
 
 Not only has an executor or administrator the right to 
 sue upon all the deceased person's contracts of every 
 kind, as his bonds, covenants, bills, notes, but he may 
 sue for damages for a trespass (a;) committed on his goods 
 during his lifetime or in trover (cc) for their illegal con- 
 version, or for cutting and carrying away his corn. He 
 may also sue on a quare iimpedit for a disturbance of his 
 right of church patronage, and also for a wrongful eject- 
 ment suffered by him ; in short, for every injury done to 
 the personal estate before or after the testator's or in- 
 testate's death, where such injury remains unredressed {x). 
 
 The principle on which all these rights depend, being The principle 
 the injury received by the deceased's personal estate, " an rightTo'sue is 
 executor or administrator shall now have the same actions ^^^ injury 
 
 • • 1 1 7 <• 1 1 1 ^"ne to the 
 
 for any mjury done to the personal estate oi the deceased testator's per- 
 in his lifetime, whereby it has become less beneficial to sonai estate, 
 the executor or administrator, as the deceased himself amples of 
 might have had, whatever the form of action may be. executor's 
 
 . right. 
 
 So that he may now have trespass or trover ; an action 
 
 '(t) BuUen & Leake, Prec. PI. Drake, 2 H. L. Cas. 579. 
 152, n. (a). (x) 1 Wms. Exors. pt. 2, bk. 3, 
 
 (u) Per Parke, B., in Beckham v. cb. 1, § 1, 791 et seq. 
 
184 
 
 WILLS OF PERSONAL PBOPBETY. 
 
 Compensation 
 may now be 
 claimed where 
 a person is 
 killed by the 
 negligence of 
 another. 
 
 Lord Camp- 
 bell's Act 
 
 applies to 
 death caused 
 by a felonious 
 act. 
 
 For whose 
 benefit action 
 to be brought. 
 
 Illegitimate 
 child_not 
 
 against the sheriff for a false return in the lifetime of the 
 testator; an action against the sheriff for suffering a per- 
 son in his custody in the lifetime of the testator to 
 escape ; debt or a judgment against an executor sug- 
 gesting a devastavit ; an action for removing goods taken 
 in execution before the testator (the landlord) was paid a 
 year's rent, and other actions of the like kind, for injuries 
 done to the personal estate of the deceased in his life- 
 time " {k). 
 
 The rule of the Common Law, expressed in the maxim. 
 Actio personalis moritur cum persona, was modified 
 long ago by the statutes 4 E. 3, c. 7, 15 E. 3, c. 5, 
 and more recently in one very important respect by 
 the Legislature in the year 1845. In that year, a 
 statute was passed (I), under the conduct of the late Lord 
 Campbell, which, for the first time, gave a right of action 
 to the representatives of a person killed by any wi'ongful 
 act. The statute in question enacts that whensoever 
 the death of a person shall be caused by any wrongful 
 act, neglect, or default, and the act, neglect, or default is 
 such as would (if death had not ensued) have entitled the 
 party. injured to maintain an action and recover damages 
 in respect thereof, then, and in every case in which the 
 person would have been liable if death had not ensued, he 
 shall be liable to an action for damages, notwithstanding 
 the death of the person injured, and although the death 
 shall have been caused under such circumstances as 
 amount in law to felony (sect. 1). 
 
 Every such action shall be for the benefit of the wife, 
 husband, parent, grandparent, grandchildren, step-parent, 
 and step-children of the deceased person, and shall be 
 brought by and in the name of his executor or adminis- 
 trator. An illegitimate child is not within the provision 
 
 persons killed by accidents," and 
 
 (k) 1 AVms. Exors., supra. As 
 to injuries to real estate for which 
 executors may sue, see 3 & 4 W. 4, 
 c. 42. 
 
 (I) 8&9ViGt. c. 93. "An Act 
 for compensating the families of 
 
 now commonly known as Lord 
 Campbell's Act. See also 27 & 28 
 Vict. u. 96, which amends the 
 above, and provides that those two 
 Acts shall be read as one. 
 
OF PERSONAL PROPERTY. 185 
 
 of the statute under consideration (m). The damages (if within the Act, 
 any) recovered, shall be divided amongst the above-men- f'°7 '^'^^s^^ 
 tioned parties, in such shares as the jury by their tionecl. 
 verdict shall find and direct (sect. 2). 
 
 Not more than one such action will lie for and in Only one 
 respect of the same subject-matter of complaint, and be brought 
 every such action must be commenced within twelve 
 months after the death of the deceased persons (sect. 4). 
 
 If there be no executor or administrator to the deceased Where there 
 person, or if there be such, and he has not, within six „ adSnis^*""" 
 months, brought an action, then all or any of the persons trator. 
 for whose benefit the action would have been, if it had 
 been brought by the executor or administrator, may pro- 
 ceed just as one or the other of these might have done (n). 
 
 It makes no difference whether the deceased met his Negligence on 
 death through a breach of contract or by reason of a death on the 
 tortious or even felonious act: if he were killed by the otter fonns 
 
 1 . „ . ,. , , the ground or 
 
 negligence or wrong-domg ot another, the latter is liable the action. 
 to an action for the injury committed, and the statement 
 of claim (o) must be founded on tort. 
 
 We see also that, although the executor or administrator 
 can sue, yet the damages recovered in the action^ which 
 he may bring do not form assets in his hands, but are to 
 be apportioned to those members of the deceased's family 
 named in the statute, according as the jury assessing the 
 damages may direct. The fact is, the executor or ad- Executor sues 
 ministrator does not sue in either of those capacities at all not qud ' 
 under Lord Campbell's Act, but rather as an agent, or, executor. 
 perhaps, trustee, since the right does not devolve upon 
 him either by a Will or by Letters of Administration. 
 
 The defence of accord with, and satisfaction to, the Accord and 
 deceased person during his lifetime, is a good one to an in*decea^ed's 
 fiction brought under the statutes 9 & 10 Vict. c. 93, and lifetime bar 
 27 & 28 Vict. c. 95 (p). *^'^"*"°- 
 
 (m) Dickinson v. The North- system of pleading has given place 
 
 Eastern Railway Co., 9 H. & C. to something more like a former 
 
 35; SSL. J. Ex. 91. bill in Equity called the "State- 
 
 (n) 27 & 28 Vict. c. 95. ment of Claim." 
 
 (o) The " declaration " of the old {p) Head v. The. Great Eastern 
 
186 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 No Common 
 Law remedy 
 for an executor 
 by reason of a 
 tort done to 
 his testator. 
 
 Nor by statute 
 except in the 
 above instance. 
 
 Tort in the 
 nature of a 
 breach of 
 contract, and 
 vice versd. 
 
 Nature of 
 injury should 
 be carefully 
 examined to 
 see whether 
 it be a tort or 
 breach of 
 contract, or a 
 combination 
 of both. 
 
 Injury to the 
 personal estate^ 
 not to tjte 
 person, is the 
 ground of 
 action. 
 
 Negligence 
 is often a 
 union of tort 
 with contract. 
 
 The Common Law provides no remedy to a man's per- 
 sonal representatives for a tort of a merely persoTial 
 character committed against him in his lifetime, nor in 
 any other cases than those we have just mentioned does 
 the Statute Lavr. 
 
 If, however, the tort be such as amounts in reality to a 
 breach of contract, and which can be sued upon as such, 
 then the Common Law gives to the personal representa- 
 tives of a deceased person a right of action to recover 
 damages upon such breach of contract. We must, then, 
 always examine the nature of the injury, and see whether 
 it is exclusively a personal tort and nothing else, or 
 whether it is a breach of contract in the nature of a tort. 
 If it be of the former kind, no action by an executor — - 
 except under Lord Campbell's Act, which only applies to 
 death — will be maintainable ; if, on the other hand, it be 
 of the latter kind, an action may lie because although 
 executors or administrators are not empowered to redress 
 mere personal injuries, yet they have a remedy for those 
 which directly damage the testator's or intestate's persoTial 
 estate. 
 
 Now offences such as assault, defamation, false im- 
 prisonment, and malicious prosecution, are purely personal 
 torts, and the right of action on account thereof dies with 
 the person injured (g). It is, however, not difficult to 
 imagine that a man's personal estate might be at least 
 consequentially deteriorated by the infliction of any of the 
 injuries indicated upon him ; but it is considered that the 
 connection between the tort and the damage under such 
 circumstances, is of too remote and uncertain a character 
 to enable us to estimate what compensation might be. due ; 
 hence the rule of the Common Law. 
 
 But there are some kinds of injuries which combine in 
 them the features both of torts and contracts. Of these 
 a familiar instance is negligence ; for this, it is obvious, 
 
 Railway Co., L. E. 3 Q. B. 555; (g) BuUen & Leake, Free. PI. 325, 
 
 37 L. J. Q. B. 278. note (6). 
 
a solicitor. 
 
 OP PERSONAL PROPERTY. 187' 
 
 may consist eitlier in a breach of contract, or with such 
 
 breach united to some direct wrongful act of a personal 
 
 character, since negligence may arise either by the doing 
 
 or not doing of some act. If a man's personal estate, 
 
 then, be shown to have suffered injury by the negligence 
 
 of some other person, the deceased person's executor or 
 
 administrator will have the right to sue the person guilty 
 
 of such negligence, notwithstanding the presence therein 
 
 of the tortious and personal element. In other words, Action inform 
 
 if the action, though in form, be ex delicto, but, in sub- f^ SancT*^ 
 
 stance, ex contractu, it will lie. This being so, if a ex contractu. 
 
 solicitor undertake to investigate the title to an estate for 
 
 an intending purchaser, but fail to do so properly, thereby 
 
 causing a loss to his client, such a circumstance would be 
 
 negligence arising from the solicitor's failure to perform 
 
 his promise, and a wrong for which an action would lie by 
 
 the executor or administrator of the promisee. Such was Negligence by 
 
 the case of Knights v. Quarles' (r), the principle of which 
 
 has since been followed in several subsequent decisions 
 
 where actions for injury to a deceased person's estate have 
 
 been adjudicated upon (s). 
 
 The second of the cases cited below (s) forms an ex- Negligence 
 cellent illustration of the doctrine now under consideration, company. 
 A., while travelling on the defendants' line of railway, 
 met with an accident, the immediate result of which 
 was an indisposition, which caused him to withdraw from 
 his business for some time. During the period of his 
 absence, the profits of his trade were seriously diminished Diminution 
 and he was, moreover, compelled to expend a considerable l^^^ ^y 
 sum for medical attendance. He subsequently died, negligence, 
 though his death was not directly attributable to his 
 accident. Here then was a tort, namely the bodily Tort and 
 injury, and this arose out of a previous contract, namely, 
 
 (r) i Moore, C. PI. Rep. 532. L. R. 10 C. P. 189 ; ii L. J. C. P. 
 
 (s) See Pottery. The Metropolitan 148. Eeadthe Judgt. ofWilles, J., 
 
 District Railway Co., 30 L. T. 765 ; in Alton v. The Midland Railway 
 
 and 32 L. T. 36 (Exch. Ch.) ; Co., 19 C. B. 213 ; 34 L. J. C. P. 
 
 Bradshaw and Wife v. The Lanca- 292. 
 sMre and Yorkshire Railway Co., 
 
188 
 
 WILLS OF PERSONAL PROPERTY, 
 
 Medical 
 expenses 
 recoverable. 
 
 Observations 
 on the case 
 in the text. 
 
 Summary of 
 
 preceding 
 
 remarks. 
 
 that by which the defendants undertook to safely con- 
 vey the deceased on their line. In this state of cir- 
 cumstances, an action was brought by the executrix to 
 recover, first, compensation for the profits of the business 
 which had been lost by the testator's compulsory absence 
 therefrom, and which had been caused by the negligence 
 of the defendants ; in the second place she sued for 
 the expenses connected with the medical attendance 
 which testator had required, also in consequence of that 
 negligence. The Court of Common Pleas held that 
 this action was maintainable, that the maxim, actio per- 
 sonalis moritur cum persond, did not apply to such a case ; 
 that the cause of action was not taken away by any of 
 the provisions of Lord Campbell's Act ; that the damages 
 given by the jury at the trial, namely, ^160 for loss of 
 profits to the testator's personal estate, and ^40 for 
 medical expenses, were not too remote ; and, lastly, Mr. 
 Justice Denman expressed an opinion that the principle of 
 the well-known rule in Hadley v. Baxendale {t) does not 
 apply to a contract to carry a passenger with safety (u). 
 
 "It is clear," observed Mr. Justice Grove, "that the 
 estate of the testator was diminished from two causes — 
 first, he was compelled to incur medical expenses, and, 
 secondly, he was unable to superintend his business ; and 
 I think that the executrix may sue after his death, on the 
 ground that, by the defendant's breach of contract, the 
 amount of assets corhing to her has been lessened." 
 
 The right, then, of an executor or administrator to sue 
 for compensation in respect of fatal injury inflicted on a 
 deceased person stands thus : — He may — not, however, by 
 virtue of his position, but as a trustee — sue for the benefit 
 of the deceased's family, whether the tort occasioning 
 death was one pure and simple, or whether it sprang out 
 of a breach of contract. Again, where the deceased re- 
 ceived personal injuries, resulting from either a breach of 
 contract or a tort, and of such a character as to directly 
 
 (t) 9 Ex. Rep. 341 ; 23 L. J. Ex. 
 179. 
 
 (m) But see the concluding part 
 of Mr. Justice Grove's Judgment. 
 
OF PERSONAL PROPERTY. 189 
 
 damage his personal estate, though not causing death, 
 the right to sue for compensation for such intervening 
 damage survives to his executor or administrator. 
 
 The law on this particular point — an early if not the first Recent 
 case on which is the comparatively recent one of Potter v. this class of 
 The Metropolitan District Railway Company, already °'^^^- 
 referred to {w) — may, therefore, be regarded as settled. But 
 the same principle was enunciated by the Court of Common 
 Pleas many years ago, when delivering judgment in Knights 
 V. Quarles {x), and its present prominence is no doubt 
 attributable to the introduction of railways, the consequent 
 increase in travelling, and unfortunately in accidents. 
 
 On the ground that damage to the deceased person's Action for 
 estate is what constitutes the executor's right to sue on promise of 
 breaches of contract — and torts too, if their effect has carriage can- 
 
 . , not be brought 
 
 been to depreciate the testators personal estate — an either by or 
 action cannot be maintained on behalf of a testator or representative 
 intestate for a breach of promise of marriage, where no of a deceased 
 special damage can be shown to have accrued to the p'^^^™' 
 deceased's estate {y). This is so, because a promise to 
 marry would be part of a merely personal contract, to any 
 assumed right to enforce which, the maxim actio person- 
 alis moritur cum, persond will apply. 
 
 We are not, however, to infer that because damage to Damage need 
 the testator's estate is the foundation of the executor's before the 
 right to sue for compensation for such damage, that there- Judicature 
 fore he must always aver that the injury was sustained by been averred 
 the estate during the testator's lifetime. The law is also accrued in 
 clear that an executor may sue for a breach of contract com- testator's life- 
 mitted against his testator, without averring what loss his 
 personal estate may have sustained (z), so long as he alleges 
 
 (w) Ante, p. 187, note (s). Weaver, 12 M. & W. 718 ; 13 L. J. 
 
 (a;) Ibid., note (r). Ex. 195. Now, under the Judica- 
 
 (y) Chamberlain v. Williamson, ture Acts, the plaintiff in an action 
 
 2 M. & S. 408 ; and the instructive for breach of covenant would simply 
 
 Judgt. of Ld. Ellenborough therein. indorse his writ of summons, to the 
 
 («) Raymond v. Fitch, 2 0. M. & effect that he claims damages for 
 
 R. 588; 6 L, J. Ex. 45, and see the breach of covenant, and set out 
 
 Judgt. of Paj-ke, B., in jBicfeifeawc? shortly the material facts of his 
 
 another, Executors of W. Lloyd,Y. case in his statement of claim. 
 
 time. 
 
190 
 
 WILLS OF PERSONAL PROPBKTY. 
 
 Eule tiat an 
 executor may 
 sue on all 
 breaches of 
 covenant with 
 his testator 
 how modified. 
 
 Keal 
 
 covenants. 
 
 Covenant 
 only collateral. 
 
 and can show some damage to liave accrued to it, and this 
 may be by the simple breach itself of an undertaking {z). 
 If there was a contract with the deceased, and that contract 
 was broken in his lifetime, so that the benefit thereof could 
 not pass to the executor as part of the personal estate, 
 then, in such case, since the breach formed the damage (2), 
 the executor may sue, whether or not he states such breach 
 of contract to have occasioned special damage to his 
 testator's personal estate. 
 
 " The rule that the executor may sue upon every cove- 
 nant with his testator broken in his lifetime, has been 
 directly qualified by the decisions in the two cases of 
 Ki/ngdon v. Nottle (a), followed by that of King v. 
 Jones Q>), in which cases it was held, that where there 
 are covenants real, that is, which run with the land and 
 descend to the heir, though there may have been a formal 
 breach in the ancestor's lifetime, yet if the substantial 
 damage has taken place since his death, the real represen- 
 tative, and not the personal, is the proper plaintiff" (c). 
 
 If then the covenant is of a strictly real character, 
 that is, so appertaining to land as to descend therewith, in 
 case it be broken in the testator's lifetime, but the ulti- 
 mate loss accrues only after his death, the heir, and not 
 the executor of the deceased person, must sue for such 
 breach ; but if the breach and damage both occur in the 
 testator's lifetime, then the executor sues. Should the 
 covenant not be real, but merely collateral and, there- 
 fore, not running with the land, then, for a breach of 
 such covenant, the executor or administrator is the proper 
 person to sue, because in the former case the injury would 
 have been to the deceased's real, and in the latter to his 
 personal estate id). 
 
 Difference 
 between a 
 covenant 
 running with 
 the land, and 
 one merely 
 collateral or • 
 in gross. 
 
 (a) 1 M. & S. 355. 
 
 (J) 5 Taunt. 418, affirmed 4 M. 
 & S. 188. 
 
 (c) From the Judgt. in Raymond 
 V. Fitch, cited by Parke, B., in 
 Eicketts v. Weaver. 
 
 {d) By a covenant running with 
 tie land, is meant one where 
 either the liability to perform 
 it, or the right to take advantage 
 of it, passes with the land itself 
 as a covenant to pay rent, to pro- 
 
OF PERSONAL PEOPERTS". 191 
 
 The precise point decided in Ricketts v. Weaver was, Eicketts v. 
 that where A. enters into an agreement with B. to keep ^^^^' 
 certain hired premises in repair, whether he be the tenant 
 or not, and fails to do so, by which failure B.'s personal 
 estate is damaged, B.'s executor may successfully sue A. 
 for his breach of covenant, because the benefit of the 
 covenant to repair would really form part of B.'s personal Breach of a 
 
 Tc-iin 1 1 i covenant is 
 
 estate, and the oreacfi ot it would be a damage thereto, damage. 
 The facts of the above case, shortly stated, were as follows : 
 One Lloyd and his wife were in possession of a certain 
 messuage and lands of which the wife was tenant for life, 
 and which they demised to a person named Stallard as ■ 
 tenant from year to year. Stallard covenanted with Lloyd 
 and his wife to keep and leave the property thus demised 
 in repair, and Weaver also covenanted with them that, 
 in case Stallard should commit a breach of this covenant, 
 he, Weaver, would, on demand, pay all the expenses which 
 might therefrom result, just as if he himself were the 
 tenant ; in short, he covenanted to be Stallard's surety for 
 the observance of his covenant to repair. Mrs. Lloyd died 
 in her husband's lifetime, and Stallard having broken his 
 covenant — thereby subjecting Lloyd to liability to incur 
 expense in repairing the demised property — after the lat- 
 ter's death his executor, Ricketts, brought an action against 
 the surety. Weaver, and it was pleaded on behalf of the Plea, 
 latter that Lloyd had not been put to the expense stated, 
 since his interest in the property had terminated with his 
 wife's death. This plea was demurred to on the ground Demurrer 
 that it ignored the defendant's engagement to be responsible 
 for the breach of Stallard's covenant, and the Court sup- 
 ported the demurrer, holding Weaver, as we have before 
 
 . duoe title-deeds, to repair, &e. A running with the laud, and there- 
 covenant collateral, or in gross, on fore not binding on an assignee 
 on the other hand, is one which thereof, or one of which he could 
 does not directly concern the realty ; take advantage ; it is, in short, 
 thus, if A. covenant to hire certain mo'ely collateral to the land. See 
 persons to work in a mill to he Spencer's Case,, 5 Co. Rep. 16 ; 
 erected on land leased to him, this Resolutions 2, 6 ; also the notes to 
 would be a personal covenant, not this case in 1 Sm. L. C. 
 
192 
 
 WILLS OF PERSONAL PROPERTY, 
 
 A covenant to 
 repair runs 
 with the land. 
 
 But the breach 
 of such a 
 covenant may 
 be sued on by 
 a personal 
 representative. 
 
 When the 
 breach and 
 damage accrue 
 in the testa- 
 tor's lifetime. 
 
 If the breach 
 of covenant 
 occur in the 
 testator's life- 
 time, but the 
 substantial 
 damage accrue 
 Vfter his death, 
 then the real 
 representative 
 must sue. 
 
 stated, liable, on the ground that the personal estate of 
 Lloyd had, by his breach of covenant, suffered damage. 
 
 Now it appears that here there was a distinct cove- 
 nant to repair, and, as such a covenant is one running 
 with the land, it may be asked whether it was not one to 
 be taken advantage of rather by the real, than by the 
 personal representative of Lloyd. But Pollock, C.B., 
 stated that the case was to be decided according to the 
 doctrine of Raymond v. Fitch, but that Morley v. 
 Polhill (e) was a direct authority bearing upon the 
 question, and which must govern its decision. In this 
 case, which occurred as far back as 1689, an action of 
 covenant was brought by the executor of a deceased 
 Bishop of Winchester, B., founded on the following facts : — 
 The bishop's predecessor A., had granted a lease for twenty- 
 one years to C, who covenanted with the bishop and his 
 successors to repair the demised' premises. C. broke this 
 covenant in the lifetime of B., and B.'s executor sued C's 
 executor for the breach. It was argued that the covenant 
 being a real one, the breach thereof could not be sued 
 upon by the executor of B. ; but, to use the language of 
 the report, the whole Court gave judgment for the plain- 
 tiff, and that the executor was well entitled to the action 
 for the breach in the testator's lifetime. 
 
 The rule in such cases may then be stated to be, 
 that if the covenant enures to the heir — that is, to 
 serve for his use or benefit — and the substantial damage 
 has taken place since the death of the ancestor, 
 the heir is the party to sue ; but where there is a 
 breach of a personal contract, or the covenant be merely 
 collateral, then the personal representative sues. The 
 covenant to repair, although running with the land, is not 
 one upon which, if broken in the testator's lifetime, the 
 heir exclusively can sue (/), unless the substantial damage 
 has taken place since the testator's death, for if it has 
 
 (e) i Ventris, 56 ; 3 Salk. 109. scribing the effect of Kingdom v. 
 
 (/) See the Jndgt. in. Raymond Nottle, and King v. Jones, ante, . 
 V. Fitch, ante, p. 189, n. («), de- ibid. 
 
OF PERSONAL PROPERTY. 193 
 
 accrued in Ms lifetime, the executor may sue upon it. 
 Where the substantial damage has taken place since the 
 testator's death, by a breach of a real covenant made with 
 him, then the real representative is the proper plaintiff, 
 although a formal breach of the covenant may have taken , 
 place in the ancestor's lifetime. 
 
 Having glanced at the right which a deceased person's 
 representative has to prosecute such rights as he himself 
 might have taken advantage of when living, and also, 
 how this right is confined by the maxim actio personalis 
 cum moritur, we may now further proceed with the 
 subject under our immediate notice. 
 
 A chose in action then, we perceive, is a right, and those Nearly all 
 rights of a deceased person which may be pursued after testator de- 
 his death are, conversely, choses in action. And in all foiving on Ha 
 
 .„,, „ T ■ ^ executor are 
 
 cases where these consist ot debts oi any kmd, covenants cfioses in 
 personal, and those which only sound in the realty, pro- ""**""■ 
 mises, rights to sue for trespass or in trover, ej ectment for 
 ejecting testator, in quare impedit, for loss of interest on 
 deposit money, on a bail bond, or a right to replevy tes- 
 tator's goods, it matters not whether the cause of action (g) Executor's 
 accrued before or after the testator's death. The whole whether cause 
 doctrine as to the right of the personal representative to ?* ^*"'" ^™^® 
 
 . lu testator s 
 
 sue at aU m such cases, is founded on two facts — first, lifetime or 
 that for most purposes the executor or administrator stands ^^^^-^ ^ 
 precisely in the same position as the testator or intestate ; 
 and, secondly, that where his estate has been damaged, 
 the injury done thereto may be redressed (h). 
 
 But not only may an executor sue for the above choses Other interests 
 im, action, but he may become entitled to interests which personal repre- 
 
 (g) As to the term "cause of of a defendant which gives the 
 
 action," see Jackson v. Spittal, L. plaintiff his cause of complaint. 
 
 R. 5 C. P. 542 ; 39 L. J. C. [P. In the latter case, it was announced 
 
 321 ; and Vaughanv. Weldon, L. E. by Lord Coleridge, C. J., that for 
 
 10 C. P. 47 ; 44 L. J. C. P. 14. the future, the judges would adopt 
 
 The former of these cases deter- this definition of " cause of action. " 
 
 mined that "cause of action" (A) Toller, Exors. 166— 162. 
 simply means that act on the part 
 
194 
 
 WILLS OF PERSONAL PROPERTY. 
 
 sentative may 
 
 Rights against 
 personal repre- 
 sentative. 
 
 Rules as to 
 these. 
 
 Injury caused 
 by testator 
 ■whereby his 
 estate was 
 benefited, is 
 the ground of 
 action against 
 his executor. 
 
 jLnnnity. 
 
 were vested in the testator by condition, by remainder, or 
 in increase, by assignment, by limitation, and also by 
 election. 
 
 Just as an executor may sue for a chose in action 
 vested in his testator, on the ground that, by the violation 
 of a right involved, damage accrues to his personal estate, 
 so an injured person may sue an executor for his tes- 
 tator's wrongful act towards such person, if thereby the 
 estate of the latter has been benefited in his lifetime, or 
 the cause of action did not accrue until after his death. 
 But no action where the statement of claim would be founded 
 on quare vi et armAs et contra pacem will lie, because all 
 private injuries of a criminal or civil character, as well 
 as public crimes, are buried with the offender. Where, 
 however, the statement of claim can be founded on as- 
 sumpsit, whether the cause of action was in its nature 
 ex delicto or ex contractu, then an action will lie against 
 the executor, who, however, be it remarked, is liable only 
 to the amount of the assets, unless, of course, he make 
 himself personally liable. To sum up the rule as to the 
 liability of an executor for his testator's wrongful acts, it 
 may be said that if the injury complained of was such that 
 the testator acquired no benefit to his estate at the 
 expense of the sufferer, the executor is not liable ; if, 
 besides the wrong committed, property was acquired which 
 increased the testator's personal estate, then, in such case, 
 an action may be maintained against his personal repre- 
 sentative (i). 
 
 A species of personal property of a somewhat peculiar 
 character is an annuity. This, strictly speaking, is a 
 yearly payment {annus redditus) of a certain sum of 
 money granted to another in fee simple, fee tail, for life, 
 or years, charging the person of the grantor only. If 
 payable out of lands, it is properly called a rent-charge ; 
 
 (i) Toller, Exors., a&a%Hamhly 
 V. Trott, Cowp. 375. The aTaove 
 general statement will be enlarged 
 
 upon in our chapter upon Exe- 
 cutors. 
 
OF PERSONAL PROPERTY. 195 
 
 but if both the person and estate be made liable, as 
 they most commonly are, then it is generally called an 
 annuity {k), which term will, however, denote any yearly 
 payment granted out of any kind of property (k). 
 
 The noticeable peculiarity of an annuity, when com- Its peculiar 
 Dared with other subjects of personal estate, consists in ^ subject of 
 the following features : — ^Although its source may be per- peraonal pro- 
 sonalty, yet it can be limited in fee, and when it is so 
 limited, it will, like a fee simple, descend, in case of in- 
 testacy, upon the heir. Unlike such an estate, however, 
 it nevertheless exists as personalty (I), and may pass as 
 such under a bequest of " all my personal estate " (m). 
 An annuity granted to a man and his heirs has been 
 called a fee ai/mple personal, and, where a grantee and his 
 heirs received from Edward I. a charter whereby he and 
 they had a right to request letters patent to be issued Instances of 
 for the appointment of justices to hear and determine 
 matters appertaining to forestal rights, Sir E. Coke calls 
 this " a personal inheritance .... that concerneth 
 . neither lands or tenements." 
 
 An annuity may also be granted to a man and the heirs An annuity in 
 of his body ; but such an annuity as this will not, however, considered, 
 descend, as does an annuity in fee, analogously to its cor- 
 responding estate in realty. This is so, because although 
 it is not mere personalty — ^which, if granted to a man and 
 the heirs of his body, will give him the absolute property 
 therein — yet it is descendible only on condition that 
 the grantee has issue and cannot be the subject of 
 entail (n). If he has not issue, the progress of the An annuity 
 descent is stopped, since an annuity, although descendible, ^a™and*the 
 is only personal property, and such being the case, it heirs of Ms 
 
 (fc) See. further on this subject, 2 passed as personalty under " all 
 
 Black. Comm. 41 ; 1 Bac. Abr. the rest, residue and remainder of 
 
 Title "Annuity." my personal estate of what nature 
 
 (I) Badhurn v. Jervis, 3 Beav. or kind soever. " 
 450, 461. (») See the statement in Tv/rner 
 
 (m) Aubin v. Daly, 4 B. & Aid. v. Turner, under claim 3, Amb. 
 
 69, where an exchequer annuity 779. 
 
 o 'i 
 
196 
 
 WILLS OF PEESONAL PROPERTY. 
 
 body is only 
 of a conditional 
 character. 
 
 Tte condition 
 of its descent 
 is that the 
 grantee in tail 
 has issue. 
 
 Turner v. 
 Turner. 
 
 Words of 
 inheritance. 
 
 is not within the Statute De Bonis Conditionalibus, 13 
 Edw. 1, c. 1, which enactment operates only upon grants 
 of realty and estates of inheritance which are purely such 
 in law (o). An annuity granted in fee tail then, is simply 
 a conditional fee, not really entailable in the strict sense 
 of the term, but only with the modification mentioned (p). 
 As to an annuitant in fee, " When the grantee has issue, he 
 may therefore alien the annuity in fee simple by a mere 
 assignment ; but should he die without issue, the annuity 
 will fail (q)." 
 
 The interesting case of Turner v. Turner is an autho- 
 rity on this subject, and although the report of it in 
 Ambler is somewhat rugged, yet enough is there said to 
 illustrate the principle under notice, and to show that the 
 case was argued and adjudicated upon with great ability 
 and clearness. 
 
 Put in a summarized form, it was as follows : — N. Turner, 
 by his Will of Jan. 7, 1734, bequeathed to his wife 
 ^300 a-year daring her life, directing that, after her 
 death, this sjm should be kept and improved by his exe- 
 cutors, to make up a sum to be given as a fortune to his 
 first daughter that should marry after his wife's death, 
 with the consent of his executors. After one of his 
 daughters was so married, the said £300 a-year was 
 directed to be kept and treated as before, to make a fortune 
 for the rest of his daughters' marriages, one after another. 
 He then ordered that, after all his said daughters were 
 married, that the said £300 a-year should be given to his 
 eldest son, N. R. T., and, on his death, to the heirs male 
 of his body ; but in case of his having no issue male, 
 then to remain to his next eldest son, and the heirs male 
 of his body. The testator died soon after making his 
 Will, leaving ten children, of whom five were sons — 
 N., R., J., W., and C, and five daughters. 
 
 (o) Co. Litt. 2 a and 20 a, Harg. 
 and Butler's notes (1) and (5) 
 respectively. 
 
 {p) Juclgt. of Lord Loughborough 
 
 in Turner v. Turner, supra. 
 
 iq) Wms. P. P. pt. 3, commence- 
 ment of chap. i. 
 
OF PERSONAL PROPERTY. 197 
 
 A sum of £1 0,000 was afterwards set apart by the Court 
 of Chancery, to answer the annuity of £300. 
 
 The eldest son N., died in his mother's lifetime, having 
 made a Will bequeathing the residue of his estate upon 
 certain trusts to his brothers J. and C, — ^the latter of whom 
 was the plaintiff, — appointing them at the same time his 
 executors. 
 
 R, J., and W. also died in their mother's lifetime, and the 
 portions of the daughters had all been satisfied at the 
 time of the mother's death, which happened in Jane, 1782. 
 
 On her death the plaintiff — the survivor of the five CJaimofthe 
 brothers and the executor of the eldest one — claimed the surTmng son. 
 sum of £10,000, or, at least, the annuity of i;300. He 
 contended that as his elder brother could only have taken 
 it after his mother's death, and as there was an executory 
 bequest to that one of the testator's sons who, after her 
 decease, should be his eldest, and as he, C, answered 
 that description, he was accordingly entitled, if not to the 
 sum which produced the annuity, namely, the £10,000, at 
 any rate to the annuity itself for his life. 
 
 The capital sum was also claimed by the executors and Claim of the 
 trustees of N.'s Will, on the ground that the limitations i^^^^^^J"^ 
 over in the original testator's Will were void, and there- the deceased 
 fore if he, N., had survived his mother, he would have 
 been entitled absolutely to the £10,000. 
 
 Thirdly, this was claimed by the representatives of the claim of the 
 ten children of the father, as part of his residuary per- pf^^i^eo^*„2^ 
 sonal estate. testator. 
 
 The fallacy observable in the arguments for the first Arguments 
 and second set of claimants and pointed out by the ""^^ 
 counsel for the third set, lay in the contention, that a 
 sum of money at all was the subject of dispute. The 
 whole question was as to the annuity, not as to the money 
 which produced it, for the latter was not really bequeathed 
 as the source of the annuity, but had been set apart by the 
 Court of Chancery to fulfil the terms of a bequest (r). 
 
 (r) An annuity is what is called an incorporeal right, for though the 
 
198 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Judgment in 
 the case of 
 
 Twmer, 
 
 An annuity 
 may be created 
 by words of 
 inheritance. 
 How an an- 
 nuity devolves 
 when so 
 created. 
 
 "For ever" 
 not a term of 
 inheritance. 
 
 "Heirs" 
 may mean 
 
 vLord Loughborough, in his judgment, commented upon 
 this fact, and his lordship decided against the claim 
 of C, partly on account thereof, and also because of his 
 not being the original testator's next eldest son. He was, 
 in point of fact, his youngest, and the testator's words were, 
 " in case of N. E. T. having no issue male, then to remain 
 to his next eldest son and his heirs male." 
 
 The executors and legatees of N. R. T. were held to be 
 equally barred with C, because the former had never per- 
 formed the condition on which they could have been 
 entitled, namely, that of having issue, and therefore an 
 alienating power over the annuity. 
 
 The source of this annuity, the £10,000 set apart to 
 be such, was therefore held to fall into the fund whence 
 it was taken, that is to say, the personal estate of 
 N. Turner, the original testator. 
 
 The above case also forms an authority to show that 
 an annuity may be created by words of inheritance (s), 
 and the rule of law on the subject is, that when so created 
 it will, although a chattel interest, descend to the heir, and 
 not go to the executor of the grantor (f). 
 
 The expression " for ever " is not one, technically 
 speaking, of inheritance; accordingly, where a testator 
 gave his real and personal estate to his wife subject to a 
 bequest of £50 a-year to his brother for ever, that was 
 held to be an annuity of a personal character which 
 passed to the personal representative of the annuitant 
 legatee (u). 
 
 Again, in a case decided in 1869, where a testator had 
 given annuities to his children, and had even used that 
 
 money which is the product or fruit yieU, Y.-C, in Taylor y. Martin- 
 ofthe annuity, like that also which dale, 12 Sim. 158 ; 10 L. J. Ch. 
 produces it, is corporeal, yet the 
 annuity itself is a thing invisible, 
 intangible, and cannot be manually 
 transferred : 2 Black. Cdmm. 20. 
 The same may be said of rent, 
 (s) See the Judgment of Shad- 
 
 339. 
 
 (t) See also Stafford v. Buckley, 
 2 Ves. 170 ; Holdernessev. Carma/r- 
 then, 1 Bro. C. C. 377. 
 
 (tt) Taylor v. Martindale, supra. 
 
OF PERSONAL PROPERTY. ]99 
 
 strong word of inheritance, "heirs," in his bequest, it "chadren"if 
 was held that the statutory next of kin of a child *^®iate*ded 
 deceased at the date of the Will, became entitled to his 
 annuity {x). The case in question, which is rather im- 
 portant for our present purpose, was as follows : — 
 
 J. P., by his Will, dated, 1862, devised and bequeathed P"^^' "• 
 "all my real {sic) personal estate, brewery plant,, farming 
 stock, household furniture, and plate, unto my wife, A. P., 
 for her benefit, as long as she lives ; but in case of the 
 death of my said wife, I devise the above hereditaments 
 to my eldest son, J. P., and the heirs male of his body. Improper use 
 but subject to this condition, that from the rents and ^orr'^hwe- 
 profits of my farm and brewery business, that the several ditaments." 
 annuities of jE25 per annum shall be paid by him to each 
 of my six sons and daughters, or their heirs respectively ; 
 and in case the said J. P. refuse to take the property, &c., 
 subject to the above conditions, or die without issue, then 
 I devise the above hereditaments to my daughter, M. P., 
 and her hei/rs, and to be subject to the -said conditions, 
 and I devise that the above annuities commence at 
 the death of my wife, and be paid quarterly, without 
 dediiction." 
 
 At the date of the testator's Will, there were five 
 children living, including his eldest son, J. P., all of whom 
 survived him ; but one of his daughters had died before 
 the date of the Will, leaving nine children, all of whom 
 survived the testator. 
 
 The Court having decided that J. P. took the per- Decision of 
 sonalty after his mother's death, that the annuities given ^''^ Court, 
 were perpetual, and not life annuities {y), the question 
 was raised as to who was entitled to the annuity which 
 the testator's deceased daughter would have taken. 
 
 (x) Pwrscms v. Parsons, L. R. 8 to which of the two is meant in a Criterion for 
 
 Eq. 260. 'Will, may be discovered from the distinguishing 
 
 (y) A criterion for distinguishing following considerations :— If the perpetual an- 
 
 between a perpetual and a mere life testator merely gives an annuity ""iti^^ ^'^^ 
 
 annuity, when any doubt occurs as and nothittg more, as in Blevntt *r j^® 
 
200 
 
 WILLS OF PEESONAL PROPEETY. 
 
 Arguments in 
 Parsons v. 
 Parsons for 
 the eldest son 
 as "heir." 
 In a mixed 
 gift of realty 
 and personalty, 
 "heirs" must 
 be construed 
 in its legal 
 sense. 
 
 Arguments for 
 the younger 
 children. 
 
 Beasons for 
 the decision in 
 Parsons v. 
 Parsons. 
 
 For her eldest son it was argued that as his mother's 
 annuity was charged on real estate, the annuity itself was 
 real estate also, and, therefore, being such, by the terms of 
 the Will descended to him as heir-at-law. But if it were 
 not realty, it was not, at any rate, pure personalty, and 
 that, in a mixed gift of realty and personalty to " heirs," 
 this term must be construed in its strict legal sense {£). 
 
 For the younger children of the deceased — that is, aU. 
 of them except the eldest — it was contended that the 
 testator having used technical words in ignorance of their 
 legal signification (a), he probably intended " heirs " to 
 mean "children." 
 
 The words employed by the testator were admitted by 
 both sides to be of a substitutionary character, and, on 
 the ground that it has been clearly settled that under a 
 substitutionary gift of personal estate to "heirs," the 
 statutory next of kin and not the heir-at-law will take, 
 the annuity of the deceased daughter was claimed for all 
 her children. Counsel for these also cited, in support of 
 their argument, Taylor v. Martindale, already mentioned. 
 Vice-Chancellor Malins adopted the latter view, holding 
 that the case before him and that of Taylor v. Martindale 
 were, in their nature, identical ; also that the intention of 
 the testator, no doubt, was, that the annuity should not 
 go to his deceased daughter's eldest son exclusively, but 
 to all her children, and therefore that it must be divided 
 amongst them, under the Statutes of Distributions (&). 
 
 V. JSoierts, 10 L. J. Ch. 342, then 
 the annuity will be for life ; if, 
 on the other hand, he gives the 
 ■whole property out of which the 
 interest is to be paid, and for such 
 purpose, then the annuity will be 
 perpetual, or where the annuitant 
 is to assume the testator's name, 
 &c. See Stokes v. Eero^i, 12 CI. & 
 Fin. 161 ; Bent v. Cullen, L. R. 6 
 Ch. 235 ; 40 L. J. Ch. 250 ; and 
 the arguments and cases cited iu 
 
 Sides V. Boss, L. E. 14 Eq. 141 ; 
 41 L. J. Ch. 677. See also 2 Wms. 
 Exors. pt. 3, bk. 3, ch. 2, § 4, 
 1194—5. 
 
 {z) De Beauvoir v. De Beauvoir, 
 15 Sim. 163 ; 15 L. J. Ch. 305 ; 
 affirmed 3 H. L. Cas. 524. 
 
 (a) The italicized words in our 
 summary of the case ^indicate this 
 fact. 
 
 (I) 22 & 23 Car. 2, c. 10 ; 1 
 Jac. 2, c. 17. 
 
OF PERSONAL PROPERTY. 201 
 
 , The reader will probably have remarked one peculiarity Peculiarity in 
 about the Will in this case, namely, that the testator ^ * °^^ ''^^' 
 bequeathed an annuity to a deceased person. He, how- 
 ever, coupled with this bequest the word " heirs," which, 
 being a word of inheritance, prevented its lapse. Yet, on 
 the wording of the whole Will, he appears to have used 
 this word without understanding its legal sense ; ac- 
 cordingly, it was construed by the Court in the sense of 
 " children." 
 
 We have spoken of an annuity as a " personal annuity," Meaning of 
 which phrase means that the annuity issues out of sonalannSty" 
 personalty and not realty (c). The word "personal" also in contradia- 
 
 • T 1 IP -1 • n 1 tmctionto 
 
 mdicates the remedy for an unpaid annuity, and not only "rent-charge." 
 the source whence it is derived. 
 
 " When charged upon land, it is either real or personal ^° annuity 
 
 at the election of the holder, for he may proceed either land is either 
 
 against land or person. If proceeding out of money, it is realorpei;- 
 
 personal only as to the remedy, but properly real as to its election of the 
 
 descent to heirs " (d). annuitant. 
 
 This brings us to examine more particularly the dis- Distinction 
 tinction between a rent-charge and a personal annuity, idty andrent- 
 The former, as before remarked, is exclusively payable eliaige further 
 
 considered. 
 
 out of lands (e). It amounts, in fact, to a conveyance of 
 a real estate fpr the purpose of meeting a yearly payment, 
 and the deeds by which the transaction is effected should 
 properly contain a covenant declaring a power to the 
 grantee of distraining upon the property, in the event of 
 his annuity being in arrear or altogether unpaid. The land ^"^edy for 
 
 ^ 11113311)181160. 
 
 then becomes liable by virtue of this clause of distress, rent-charge is 
 
 not by common right, to be distrained upon as though for (jfgt^gss^'ac- 
 
 rent ; hence the name of rent-charge. At one time, if cording as the 
 
 there had been no such clause in the deed creating this cignt ^r not to 
 
 annuity, then the rent reserved would have been called a ™®^* ^*- 
 
 (c) See, e.g., the useful case of In (e) E.g., see Maiisergh v. Gamp- 
 re AsTiwell's Will, Johns. 112. bell, 3 De G. & J. 232, ; 25 Beav. 
 
 {d} Lord Loughhorough, in Tm- 544 ; 27 L. J. Ch. 769 ; affirmed 
 
 ner v. Turner, Amh. 782. 28 L. J. Ch. 61. 
 
202 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Eemedy for 
 rent seek by 
 statute. 
 
 Eemedy for an 
 unpaid rent- 
 charge is only 
 by distress. 
 
 Remedy where 
 annuity is 
 charged on 
 lands of insuffi- 
 cient value. 
 
 Where the 
 lands are of 
 sufficient 
 value. 
 
 Statute of 
 Limitations 
 applies to 
 remedy by 
 distress. 
 
 An annuity 
 must be 
 created by a 
 ■writing, and 
 is generally by 
 deed. 
 
 rent seek, tliat is, redditus siccus, or barren rent, and 
 then the grantee would have been unable to distrain for 
 his annuity. 
 
 But by 4 G. 2, c. 28, all persons shall have like 
 remedy for distress, and by impounding and selling the 
 same in all cases of rent seek which have been answered 
 or paid for three years ; and it has been decided that the 
 remedy for an unpaid rent -charge is by distress, and that 
 
 oniy(/). 
 
 " The rule of Equity, as I understand it," said Malins, 
 V.-C, in a case decided in 1871, " is, that if an annuity 
 is charged on an estate of insufiScient value, the annuitant 
 may come to the Court for a sale. But if the lands are 
 sufficient, he has no right to the help of the Court. He 
 has a power of distress under the statute 4 G. 2, c. 28, 
 s. 5, and there is no occasion for him to come here " (g). 
 
 This power of distress must be resorted to within 
 twenty years from the death of the testator, in accordance 
 with the Statute of Limitations, 3 & 4 Will. 4, c. 27, 
 s. 2 (h). 
 
 An annuity may, as far as the parties are concerned, be 
 created in many ways ; but the statute 51 G. 3, c. 41 
 requires that the instrument evidencing it must be a 
 bond, deed, or instrument. Accordingly a deed, even if 
 not actually required for the purpose, is ordinarily used ; 
 and, as to a rent-charge, that being an incorporeal Jieredi- 
 
 (/) Gra/ees v. Bicks, 6 Sim. 
 391 ; 10 L. J. Ch. 185. - 
 
 (g) Sollory v. Weaver, L. E. 9 
 Eq. 22, where the motion for a re- 
 ceiver was made and refused ; 40 
 L. J. Ch. 398. See also Paget v. 
 HvAsh, 1 Hem. & M. 633 ; 32 L. J. 
 Ch. 468, where real estates being 
 insufficient to meet certain an- 
 nuities, a. testator's personal estate 
 was held liable to make xip the 
 deficiency. 
 
 (h) James v. Salter, 3 Bing. N. 
 
 C. 544 ; 6 L. J. C. P. 171. The 
 Statute of Limitations (s. 42) does 
 not apply to personal annuities 
 created by "Will ; In re Ashwell's 
 Will, Johns. 112. 
 
 NoTB. —The statutes affecting 
 rent-charges and annuities created 
 in any other way than by Will, are 
 53 G. 3, c. 141; 3 G. 4, c. 92 ; 7 
 G. 4, c. 75 ; 17 & 18 Vict. c. 90 ; 
 18 & 19 Vict. c. 15, ss. 12 and 14 ; 
 23 & 24 Vict. c. 115. 
 
OF PERSONAL PROPERTY. 2 OS 
 
 tament, must, unless it be given by WiU, be created, and Eent-cliarge 
 also transferred, by deed, '^^l ^^ , 
 
 ' •' created and 
 
 We have seen that the remedy on an unsatisfied rent- transferred by 
 charge is by distress, and it may now be stated that the 
 
 remedy for the arrears of a personal annuity is by action arrears of an 
 
 of covenant, not by an action of debt (i). For an annuity ""^^'anT^H 
 
 under a Will, the remedy is to be found in an adminis- ia by action of 
 
 tration action ia the Chancery Division of the High Court "'"'*"'"' ■ 
 
 „ T- X- /7N Under a Will 
 
 01 J UStlCe [K) . by an adminis- 
 
 As a rule, where the income of a fund is given by Will, tration action 
 
 the corpus of the fund is also given, and not merely a Court of 
 
 terminable annuity, and this rule was held to stand, even "^ ^"^' 
 
 where an annuity was given to a feme sole for her ^here an an- 
 
 separate use, without power of anticipation, she was nnity is given, 
 
 empowered to take either the fund itself or the annuity, -sfhence it 
 
 at her option (0. / "j^n. 
 
 But this rule is liable to be entirely set aside by the 
 
 terms in which a testator may happen to express him- How the above 
 
 mlfi is r6" 
 
 self in making the gift, for if he employs language strained, 
 which clearly shows that he meant the annuitant to 
 take a yearly payment under his Will and not the fund 
 from which it issues, in such case he will not be entitled 
 to the corpus, but only to its proceeds. 
 
 The following is an illustrative case (m) : — A., in Case by -sray 
 1823 bequeathed £500 to trustees in trust to purchase °^ ^^^P^^- 
 an annuity for his brother during his life, to be paid to 
 him personally, and in case he should anticipate, charge, 
 or incumber the annuity, or become bankrupt, then the 
 annuity was to fall into the testator's residuary estate. 
 After the death of A's wife, one sixth of his residuary 
 
 (■i) Randall v. Eigby, 4 M. & W. W. Grant, M.E. ; Woodrmston v. 
 
 130 ; 7 L. J. Ex. 240. WalUr, 2 Euss. & Myl. 197 ; 9 L. 
 
 (t) See, however, Darlow v. Ed- J. Ch. 257 ; Bent v. CulUn, L. R. 6 
 
 wards, 1 H. & C. 547 ; 32 L. J. Ch. 235 ; 40 L. J. Ch. 250, Judgt. 
 
 Ex. 51 (Ex. Ch.). of Lord Hatherley, C. 
 
 (I) Barnes v. Rowley, 3 Ves. 305, (m) Power v. Hayne, L. E. 8 Ecj. 
 
 where a legatee died before his 262 ; not following Bay v. Bay, 1 
 
 annuity was purchased ; Bayley v. Drew. 569 ; 22 L. J. Ch. 878. 
 Bishop, 9 Ves. 11, Judgt. of Sir 
 
204 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Consideration 
 of the case. 
 
 Circiiin stances 
 showing tes- 
 tator's in- 
 tention to 
 withhold the 
 corpus. 
 
 Grift over on 
 violation of or 
 non-com- 
 pliance with 
 conditions. 
 
 Money giren 
 in trust. 
 
 The annuitant 
 in Power t. 
 HoAjTie had no 
 vested interest 
 in the fund. 
 
 estate was to be appropriated to the same purpose on like 
 trusts. Testator died in 1825, his widow in 1869, and 
 the annuitant died in 1843, without having broken any of 
 the conditions upon a breach of which his annuity was to 
 cease, whereupon the question for the decision of the Court 
 of Chancery was, as to who were the persons entitled to 
 the portion of the testator's residuary estate bequeathed 
 in trust for the purchase of the above-mentioned annuity. 
 Vice-ChanceUor Malins, in his judgment, decreed that, 
 as to this, there was an intestacy after the death of 
 the widow : in other words, that the one-sixth of the 
 testator's residuary estate had, under the circumstances, 
 not been disposed of 
 
 Here, then, there were words used which strongly indi- 
 cated the wish of the testator to be that his brother 
 should not become possessed of the corpus of the fund 
 which produced his annuity, for although the directions 
 as to personal payment and to non-anticipation standing 
 alone would probably have availed nothing, yet here these 
 were used in conjunction with other expressions as to 
 bankruptcy and insolvency. The direction as to the going 
 over of the fund to the residuary legatees, on certain 
 events respectively happening, showed clearly that the 
 fund given in trust for the payment of the annuity was 
 merely to supply an inalienable periodical provision for 
 the annuitant. The very first fact, that of giving the 
 money in trust, was a very significant one to show such 
 intention, and it would have been impossible for the trus- 
 tees to have paid this sum to the annuitant witTiout 
 making themselves liable to the persons entitled to the 
 gift over. The annuity in the present case was, in fact, a 
 mere personal enjoyment, not an annuity absolute and 
 unqualified; and as the annuitant did not survive the 
 testator's widow, it failed. 
 
 The annuitant in this case really never had any 
 interest in the one-sixth of the residuary estate at all, 
 either as an annuitant or absolute legatee, because he 
 
OP PERSONAL PEOPEETY. 205 
 
 died ia the widow's lifetime. Had, however, his interest 
 been vested and absolute, it would have made no differ- 
 ence whether he survived her or not (to), so long as it 
 could be shown to have vested at the testator's death. 
 But, as a mere personal enjoyment was given over on 
 breach of the conditions in Power v. Hayne, it went over 
 just as if the Will had directed the annuity to be pur- 
 chased for the annuitant only if he survived the widow, 
 for which reason the gift failed. 
 
 With regard to directions that an annuity shall go Conditions and 
 
 , , , , , , . , . limitations as 
 
 over to some other person, when the conditions upon to the forfei- 
 which it is to be enioyed are not complied with, or tore of am 
 
 , . . - 1 ■ annuity are 
 
 directly violated ; or when the annuitant is to enjoy his yalid. 
 annuity, until he commits some act which operates as 
 forfeiture thereof, it may be said that all such conditions 
 or limitations are perfectly valid and, operative. 
 
 Accordingly, where M. bequeathed to his son T. an ^^^™P?® "^ * 
 annuity of £200 for his life, to be paid to him until he 
 should sign some instrument assigning his annuity, and 
 T. took the benefit of an Insolvent Statute, scheduling 
 his annuity as a portion of his property, it was held 
 that such act was a violation of the limitation in his 
 favour, consequently that the annuity was thereby deter- 
 mined and forfeited (o). 
 
 A rent-charge ,(j3) is liable to legacy duty, especially Rent charges 
 where it is to be raised in favour of the annuitant out legacy duty; 
 of lands granted to another person ; in fact. Lord but should he 
 Lyndhurst stated that " nothing but what is a charge propfrty^of 
 upon the estate of another person will come within the another 
 Statute "(2). ^""" 
 
 (m) Bayley Y. Bishop, 9 Ves. 11, See Index. 
 Judgt. of Sir W. Grant. {p) TheAttorney-Gemralv. Jack- 
 
 (o) Shee v. Sale, 13 Ves. 405, son, 2 Or. & Jer. 101 ; Stow v. 
 
 Judgt. of Sir "W. Grant, M.R. Davenport, 5 B. & Md. S59. 
 CouAitions, precedent and. subseqmni, (j) Shirley v. Ferrers, 1 VhiXii-ps, 
 
 and limitations in Wills, are dis- 167 ; 12 L. J. Ch. 111. 
 cussed in another part of this work. 
 
206 
 
 WILLS OF PEESONAL PROPERTY. 
 
 Case where 
 annuity was 
 charged on a 
 testator's own 
 estate. 
 
 Personal an- 
 nuities also 
 subject to 
 legacy duty. 
 
 Calculation of 
 amount to be 
 paid is by the 
 Tables in the 
 Act of 1863, 
 
 except where 
 the testator 
 died before 
 that year. 
 
 The following case shows that legacy duty is payable 
 where an annuity is charged by a person on his own pro- 
 perty. A., having mortgaged an estate to secure money 
 advanced to him by the trustees of his marriage settlement, 
 died, and his daughter, as his heir, became entitled to the 
 equity of redemption of the mortgage, and also, under 
 her father's settlement, to the mortgage money. The 
 trustees conveyed the estate to her subject to the equity 
 of redemption, and did not release her father's covenant 
 for repayment of the money which they had advanced. 
 She afterwards granted an annuity to C, and, as a security, 
 conveyed the property, assigning the money to a trustee 
 for C By her Will she devised the estate, but did not 
 dispose of her personalty, and it was held that the money 
 was subject to legacy duty, since it was charged on pro- 
 perty belonging to the testatrix (r). 
 
 A personal annuity is also subject to legacy duty. 
 "The value of any legacy given by way of annuity, 
 whether payable annually or otherwise, for any life or 
 lives, or for years determinable on any life or lives, or for 
 years or any other period of time, shall be calculated, and 
 the duty chargeable thereon shall be charged according 
 to the tables in schedule hereunto annexed " (s). 
 
 But now, by section 31 of the Succession Duty 
 Act, 1853 (t), the calculation is to be made according to 
 the tables annexed to this Act, in all cases where the 
 testator died after the time of its coming into operation, 
 namely, the 1.9th of May, 1853. Where the testator died 
 before that date, then the tables in 36 G. 3, c. 52, are 
 to be employed in calculating the value of an annuity 
 for purposes of ascertaining the legacy duty payable 
 thereon {u). 
 
 (y) Sivabey v. Swabey, 15 Sim. 
 602. 
 
 (s) 36 G. 3, c. 52, s. 8, " The 
 Legacy. Duty Act." 
 
 (t) 16 & 17 Vict. c. 61. 
 
 (tt) In re Comwallis, 11 Exch. 
 Kep. 580 ; 25 L. J. Ex. 149. See 
 further, as to Legacy Duty in con- 
 nection with annuities, the former 
 of the two statutes referred to in 
 
OF PERSONAL PROPERTY. 207 
 
 An annuity is not altogether a chose in action {x), like An annuity is 
 a rent-charge (y), a legacy, or a share of residuary estate, ^(^^ and* 
 it was long ago capable of complete assignment («). " An- not governed 
 
 •^ » ,-, , ^ n -in by the rules 
 
 nuity ' — like so many other terms ot law — is probably as to the as- 
 incapable of strictly logical definition, because if we call sig^iment of 
 '^ J a \ this species oi 
 
 it a yearly payment we use a word which means the same property, 
 thing as annual, and we fail moreover to state the essen- 
 tial attributes of the term. This, however, is a matter not of 
 primary importance, and we may complete our description 
 of an annuity by calling it an incorporeal subject of personal 
 property, a chattel interest in equity, not subject to the 
 rules respecting the assignment of a chose in action (a). 
 
 The case last cited, and which is here useful, was Case of_ 
 as follows : — A testator gave to trustees, leaseholds sabbits. 
 on trust for B. for life, and then for B.'s children; after 
 this he charged the property with an annuity for C. 
 C. and her husband assigned this annuity to D. to 
 secure J6200, and afterwards assigned the same annuity 
 to one Wiltshire, the plaintiff, to secure £500. Notice 
 of the first charge was not given to the trustees until 
 long after notice of the second was given. On the 
 death of Wiltshire, his representatives filed a bill against 
 the trustees — also against C. and her husband, and the 
 personal representatives of the prior incumbrancer, D. 
 The bill prayed that the plaintiffs might be entitled to the 
 annuity by virtue of their mortgage security in priority 
 to the first incumbrancers, and that they should have an 
 account taken of what was due to them and for a fore- 
 closure in case of non-payment of their debt. For the Arguments 
 plaintiffs, it was argued by Mr. Bethell, that the annuity ™ * ® '^®' 
 
 the text, sections 8, 9, 10, and the Butler's note (1). The expression 
 
 latter, sect. 31. Under the second pro consilio impendendo, for advice 
 
 Act the interest of a successor in to he given, signifies the considera- 
 
 realty is considered as an annuity tion — at one time very common — 
 
 enjoyable by him. for which the annuity was to be 
 (x) See Gerrard v. Boden, Hetley's 
 
 C. P. Kep. 80 (1627—1632). (a) Per Shadwell, V.-C, in Wilt- 
 
 (y) Maund's Case, Co. Rep. pt. 7. shire v. Babbits, 14 Sim. 76 ; 13 
 
 29. L. J. Ch. 784. 
 {z) Co. Litt. 144 b ; Harg. & 
 
208 WILLS OF PERSONAL PKOPEETY. 
 
 was a chose in action, that priority of notice of the second 
 incumbrance to the trustees must prevail over priority of 
 the assignment by 0. to D. (b) ; accordingly, that the 
 plaintiffs were entitled to the annuity. The learned 
 counsel also contended that C. had nothing more than an 
 equitable interest, and cited a case to show that the 
 assignment of such an interest, though posterior in date 
 to another assignment, will, nevertheless, if notice of the 
 later one be first given, have priority over the earlier 
 assignments where no notice was given (c). Further, he 
 denied that the case of Jones v. Jones {d), relied on by 
 the other side, was applicable. 
 
 By the counsel for the personal representatives of the 
 first mortgagee, it was stated to be clear that the testator 
 had intended to make the annuities a primary charge 
 upon his leaseholds. Further, that the interest created 
 was not a chose in action, for, if held for a term of years, 
 it was a chattel interest ; if not for a term of years it was, 
 Judgment of being an uncertain interest, a freehold. The Vice-Chan- 
 celior decided m accordance with this view oi the matter, 
 holding that the leaseholds passed to the trustees in trust 
 for the eldest son, with remainder to his child or children. 
 A personal And, as the annuity was a chattel interest in equity, and 
 chatteUrtoest '"'"^ ^ chosc in action, or liable to the rules concerning 
 in equity. that species of property, that D. — who granted the first 
 
 loan on the annuity — was in the position of a prior mort- 
 gagee, and so entitled in preference to Wiltshire, the 
 subsequent incumbrancer, notwithstanding that he had 
 given notice to the trustees before the previous lender, D. 
 No notice re- If an annuity were indeed purely a chose in action, 
 miumbmicer ^^^ above doctrine would not have been applicable, 
 
 of such an because express notice in writing in the case of an assign- 
 interest; secus 
 
 as to a chose <> 
 
 in (uMon. (p) Dearie v. Mall, 3 Euss. 1 ; 2 equitable interests in land. Wilmot 
 
 h. .1. Ch. (0. S.) 62. But see v. Fike, 5 Hare, 14 ; 14 L. J. Ch. 
 
 Mochard v. FvXtm, 7 Ir. Eep. 131. 469. 
 (c) Loveridge v. Cooper, 3 Buss. (d) 8 Sim. 633 ; 7 L. J. Ch. 164 ; 
 
 1 ; 2 L. J. Ch. (0. S. ) 75. a case, however, which was appli- 
 
 NoTE.— The doctrine of the above cable, and with which Wilmot v. 
 
 cases as to notice does not apply to Pike (supra) is in accord. 
 
OP PERSONAL PROPERTY. 209 
 
 ment of a chose in action is generally (e) necessary to 
 bind third parties (/), althougli not so as between the 
 assignor and assignee (g), if everything be done that can 
 be done to perfect the transaction. 
 
 It is true that, " in all assignments of equitable interests Rule o£ notice 
 other than equitable estates, he who gives notice to the ^"eq^tawir'^ 
 holder of the fund has priority over him who does interests and 
 not " (h) ; but such interests and estates must not be in ^^^ *" 
 real property of any kind, for, if they are, the rule in 
 question will not obtain (i). 
 
 At first sight, the annuity in Wiltshire v. Rabbits looks Obserrations 
 very much like an interest in land ; but it is to be re- y. Rabbits. 
 marked that the property given consisted of leaseholds, 
 and, as we see, the Court held that the legal interest 
 in these passed to the trustees, while the equitable in- 
 terest was in the children of the eldest son. That in the 
 annuity was pronounced to be merely a chattel interest in 
 equity, not a chose in action, and consequently not subject 
 to the rules regulating the assignment of this species of 
 property. This being so, the first incumbrancer of the 
 annuity ranked before the second, the transaction being 
 within the scope of the maxim, Qui prior est tempore 
 potior est jure. As a matter of fact, the former was not The first 
 bound to give notice at all of the transaction in order to ^"bou?d to^ 
 
 give notice o£ 
 his incum- 
 
 (c) Where it is not necessary, see Will. The Lords Justices held that trance. 
 
 Eyre v. M'Dowell, 9 H. L. Cas. 619 ; the assignor, having done all thatwas 
 
 Grov> V. Nesbitt, L. R. 3 C. P. 26i ; possible to transfer her interest ex- 
 
 37 L. J. C. P. 124. cept the giving notice, this latter 
 
 (/) Dearie v. Sail, and Lmeridge feature was not here material. 
 V. Cooper, siupra. Now by Judica- (h) Sm. Man. Eq. tit. 2, ch. 8, 
 
 ture Act, 1873, sect. 25, sub-sect. 6. par. 13, § 4. 
 
 (g) In re Way's Trusts, 2 De G. (i) Lee v. Howlett, 2 K. & J. 531, 
 
 J. & S. 365 ; 34 L. J. Ch. 49. In a direct and important case on this 
 
 this case, a feme sole executed an point. The reader is recommended 
 
 irrevocable deed, voluntarily assign- to peruse the judgment of Lord 
 
 ing her reversionary interest in stock Westbury in Phillips v. Phillips, 
 
 held by trustees. No notice was 4 De G. F. & J. 208 ; 31 L. J., 
 
 given to them or to the trustees of Ch. 325, as to grantees and incum- 
 
 the deed. She afterwards destroyed brancers claiming in Equity, 
 this instrument, and left her stock by 
 
210 
 
 WILLS OP PERSONAL PKOPBETY. 
 
 An annuity 
 not a chose in 
 action, either 
 according to 
 authority or 
 principle. 
 
 If an annuity 
 be for years it 
 is a chattel 
 interest, if for 
 lives a freehold 
 interest. 
 
 Season for 
 considering 
 WUtsJdre v. 
 Babbits at 
 length. 
 
 Sumniaiy of 
 the law con- 
 cerning 
 annuities. 
 
 When an- 
 nuities are 
 considered 
 realty, when 
 personalty. 
 
 Words of 
 inheritance 
 cause them 
 to devolve on 
 the heir ; 
 otherwise they 
 go to executor. 
 
 Annuity de- 
 ficendible 
 whether 
 issuing from 
 realty or 
 personalty. 
 
 Eent-charge a 
 pure in- 
 corporeal 
 hereditament. 
 
 Annuity 
 
 perfect his right to the annuity, and a fortiori, he was not 
 to he postponed to a second incumbrancer for omitting to 
 do an act which the law did not require of him, and which 
 the second unnecessaril}' performed. 
 
 An annuity then is not a mere chose in action, either, 
 by authority, as we have seen, or on principle, because, 
 if it is to be held for an uncertain period, as for lives, it is, 
 though personalty, a freehold interest; if for a certain 
 term of years, it is a chattel interest. In Wiltshire v. 
 Rabbits, it was to continue so long as the testator's interest 
 in his leaseholds lasted, and as this,'whether it might have 
 been for a long or short period, was an interest certain to 
 terminate at a fixed time, it was of a chattel character. 
 
 The case just considered is one of those through which, 
 when discussed, information may be conveyed — if the ex- 
 pression may be allowed — in a collateral manner. On this 
 account, and also on account of its bearing upon a point 
 requiring notice, we have given it somewhat more pro- 
 minence than probably its intrinsic merits, considered as 
 a judicial decision, deserve. 
 
 We may now summarize what has been heretofore said, 
 and what may here further be stated, concerning annuities, 
 by stating that, when charged upon land by deed, they are, 
 being rent-charges, regarded as real property — when not so 
 charged, as personal property ; if they are created, as they 
 may be, with words of inheritance, they descend to the heir 
 and not to the executor ; if created without words of inheri- 
 tance, '' as to A. for ever," then they go to the executor, or 
 administrator, and not to the heir. With regard to the 
 descendibility of an annuity, it matters not whether it is 
 to issue out of realty or personalty, for if it be given to a 
 man and his heirs, it is an annuity in fee, or at any rate a 
 personal hereditament. A real annuity or rent-charge, is 
 a pure incorporeal hereditament, grantable for any kind of 
 estate out of a fee simple, but subject of course to the 
 durability of the grantor's own interest in other cases. A 
 personal annuity, on the other hand, is not a heredita- 
 ment nor a tenement, nor a chose in action, but a 
 
OP PERSONAL PKOPBRTY. 211 
 
 chattel interest in- Equity, whicli, however, may be as- neither a tene- 
 signed or mortgaged. An annuity may be for ever, for ^tament'^'^^^' 
 lives, or for years ; and if given by Will, the intention of 
 the testator must determine for what time it is bestowed {k). 
 The gift of an annuity to a person, without other ex- Annuity for 
 planatory words, will be only for his life ; and it may be i^™^eipetuitVr 
 so given as to amount to either a gift of the whole fund 
 itself out of which it is to issu^ (V), or merely a gift of 
 the annual proceeds therefrom (m). An annuity given by Annuity gene- 
 Will, whether derivable from rpalty or personalty, is a "" ^^ ®^^°^' 
 legacy unless the testator otherwise directs (%); and if a Where legatee 
 fund be given, to be invested fqr a person who dies before annuity can he 
 the investment can be made or the benefit accrues to puiotased. 
 him, the interest in the gift ra^j nevertheless vest in him 
 from the time of the testator's death, if he survives the Legatee may 
 latter (o) ; and the legatee may take the fund or the annual ^^ j^g proceeds, 
 proceeds of it at his pleasure («), unless, of course, the unless the tes- 
 
 '^ . , „^.„ . ,. -^ ^^ . . ' tator otherwise 
 
 terms of the Will mdicate a contrary intention on the part intend. 
 of the testator giving the annuity (g). An annuity of a re- A reversionary 
 versionary character may form legal assets in the hands of ^^^^ asseis. 
 an executor (r), and, lastly, as it may be a legacy, it will. Annuity given 
 
 (fc) See Mansergh v. Campbell, In Gaskin v. Sogers, L. R. 2 Eq. 
 
 25 Beav. 544 ; 27 L. J. Ch. 769 ; 284, annuitants were held not eu- 
 
 aifirmed 3 De G. & J. 232 ; 28 L. J. titled to participate as legatees. , 
 
 Ch. 61 (rent-charge) ; Stokes v. (o) Day v. Day, 1 Drew. 569 ; 
 
 Eeron, 12 C. & F. 161 ; Betxt v. 22 L. J. Ch. 878. 
 
 Cullen, L. E. 6 Ch. 237 ; 40 L. J. (p) Stokes v. Cheek, 28 Beav. 
 
 Ch. 260. 620 ; 29 L. J. Ch. 922.' 
 
 (T) See the judgment of Sir W. (g) Pmoer v. Eayne, L. R. 8 Eq. 
 
 Grant, M. E., in Adamson v. 262, in which case, as far as regards 
 
 Armitage, 19 Ves. 416; also that the operation of a clause against the 
 
 of Hall, V.-C, in Sweeting v. Pri- bankruptcy of an annuitant or the 
 
 deaiu, 45 L. J. Ch. 378 ; Stokes v. anticipation or alienation of his 
 
 Heron ; n. (k). legacy, Day v. Day was dissented 
 
 (m) Blemtt v. Eoierts, Cr. & Ph. from. See also, as to the forfeiture 
 
 274 ; 10 L. J. Ch. 342 ; Wilson v. of an annuity by bankruptcy, 
 
 2 y. & C. Ex. C. C. White v. Chitty, L. E. 1 Eq. 372 ; 
 
 372 ; 12 L. J. Oh. 420. 35 L. J. Ch. 343 ; and Trappes v. 
 
 (n) Sibley v. Perry, 7 Ves. 534 ; Meredith, L. R. 7 Ch. 248 ; 41 
 Mullirn Y. Smith, 1 Drew. & L. J. Ch. 257. 
 Sm. 204, 211 ; Ward v. Grey, 26 (r) Shee v. French, 3 Drew. 716 ; 
 
 Beav. 485, 491 ; 29 L. J. Ch. 74. reported as Sm v. French, 26 L. J. 
 
 p 2 
 
212 
 
 WILLS OF PERSONAL PKOPEETY. 
 
 as a legacy will 
 abate with 
 other gencial 
 legacies if 
 assets prove 
 deficient. 
 Government 
 stock ; distinc- 
 tion between 
 this and bank 
 stock, or that 
 of any other 
 company. 
 
 Is personalty 
 by statute. 
 
 Wherein it 
 resembles a 
 chose in 
 action. 
 
 Wherein it 
 differs from a 
 cJiose in 
 action. 
 
 GrOTemment 
 stock specifi- 
 cally be- 
 queathed vests 
 first in the 
 executor. 
 
 under ordinary circumstances, in the event of a deficiency 
 of assets abate pari passu with other general legacies (s). 
 
 Government Stock is a security for money (f), but Bank 
 of England Stock, like that of all other trading corpora- 
 tions, is not so (u). Stock in the public funds is not exactly 
 a chose in action, although it partakes of the quality of 
 this species of property. Thus, it is personal estate, from 
 taking which the heir of the owner is, by statute law 
 excluded when the latter dies intestate {x) ; and forraerl}- 
 it was not liable to be sold under a writ of _^. fa., as it may 
 be now (3/). Government Stock has, however, always been 
 looked upon as an equitable chose in action, for the bene- 
 ficia.1 owner could and can transfer his interest as cestui 
 que trust, so as to enable the transferee to sue for the 
 stock without the usual power of attorney (0) given for 
 that purpose. Still it differs from a chose in action, inas- 
 much as the possession of stock only confers on the holder 
 merely a right to an annuity which he himself is not able 
 to redeem (a) ; so that when we speak of selling so much 
 stock, we really mean that we assign to another person 
 the right to receive a Government annuity of so much per 
 cent, per annum. Stock may perhaps be most accurately 
 described by calling it incorporeal personalty, in which 
 Bespect it resembles an annuity, which is not a chose in 
 action, as we have seen. 
 
 It will be remembered that the Wills Act, 1838, also 
 expressly makes " shares of government and other funds " 
 personal estate (b), and as a conseqiience of this and the 
 
 Ch. 317 ; French y. French, 6 Do . 
 G. M. & G. 95 ; 25 L. J. Ch. 612 ; 
 Mutlow V. Mutlow, 4 De G. & J. 
 539. 
 
 (s) See Coore v. Todd, 7 De G. 
 M. & G. 520. 
 
 Note. — The reader will find more 
 information concerning annuities in 
 the notes to Ashhumer v. Maguire, 
 in 2 L. 0. Eq. p. 283 ; and as to 
 tlieir assignment and that of choses 
 in action, in the notes to Myalls v. 
 
 Howies, id. 770, et seqq. 
 
 [t) Ante, p. 162, and see note (a). 
 
 (u) Judgt. of James, L. J., in 
 Ogle V. Knipe, L. E. 8 Eq. 434 ; 
 38 L. J. Ch. 692. 
 
 ix) 1 G. 1, St. 2, c. 19, =. 9. 
 
 (i/) 1 & 2 Vict. c. 110, s. 14 ; 3 
 & 4 Vict. c. 82, s. l.i 
 
 {z) Ante, p. 177. 
 
 (a) Ante, p. 171, note (g). 
 
 (I) Ante, p. 79. See also 7 Ann. 
 c. 7 and 1 G. 1, c. 19. 
 
OF PERSONAL PKOPERTY. 213 
 
 preceding enactment on the subject just cited, such pro- 
 perty, though specifically (c) bequeathed, will vest in the 
 hands of a deceased person's executor, until he assents to 
 the legacy, or unless he has previously assented thereto. 
 Of the various authorities which exist for this proposition, 
 we may cite one which appears to be of a peculiarly plain 
 character — Franklin v. The Bank of England [d). In FrmUin v. 
 this case J. F. had bequeathed all the money which he Englcmd. 
 might have in the 3 per cent. Consolidated Bank 
 Annuities or any other public funds to C. B. and G. J. B., 
 upon certain trusts, and made T. F. his sole executor. At 
 the date of the Will, there was a sum of £16,000 standing 
 in the books of the Bank of England in the name of the 
 testator, and at his death this had increased to £16,500. 
 
 The executor, after having proved the WiU, caused such 
 portion thereof as related to the consols to be registered in 
 the Bank books, and subsequently demanded permission 
 of the authorities of the Bank to transfer the whole sum 
 of £16,500 to certain persons, to enable him to pay the 
 testator's debts and legacies. The Bank refused to per- 
 mit the executor to make the proposed assignment, on the 
 gi-ound that it ought to be transferred into the names of 
 C. B. and G. J. B. The executor then filed a bill in chan- 
 ceiy against the Bank authorities to compel them to 
 allow him to sell and transfer the stock as he had pro- 
 posed, and the Lord Chancellor directed a case to be 
 stated on the subject for the opinion of the Court of 
 King's Bench. In the course of the argument for the Arguments. 
 Bank, it was stated that no case had decided that stock 
 was legal assets for payment of debts ; but Lord Ten- 
 terden, C. J., replied that this had never been doubted. 
 Bayley, J., also stated that it was impossible to argue 
 
 (c) A specific bequest is simply cnlar volume to A., the legacy 
 
 the gift by Will of some particular would be specific. The gift of " my 
 
 thing, especially where the testator whole library at A. " would also be 
 
 has otiiers of the same kind. Thus, specific. 
 
 if he should possess a library of {d) 9 B. & C. 156 ; 7 L. J. K. B. 
 
 books, and bequeathed one parti- 183. 
 
214 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Judgment. 
 
 Effect of the 
 case. 
 
 The Bank 
 cannot with- 
 hold either the 
 fund or its 
 dividends 
 from the exe- 
 cutor, who is 
 responsihie for 
 their appli- 
 cation. 
 Churchill v. 
 The Bcrnk of 
 
 Equity of 
 redemption. 
 
 An equity of 
 redemption 
 may be re- 
 garded in four 
 ways. 
 
 that if a fundholder died intestate or insolvent his next, 
 of kin could claim his stock. The Court finally decided 
 against the Bank, and remitted to the Lord Chancellor a 
 certificate to that efiect. 
 
 The Bank of England then has no right to withhold 
 the corpus of stock from the executors of a testator ; and 
 the same may also be said of the dividends accruing from 
 the stock, for an executor is the legal owner of his tes- 
 tator's personalty, both in bulk and in detail, and is 
 answerable for its proper application. The following case 
 is in point here : — A. was specific legatee of an interest in 
 certain government stock, part of a larger sum. Judg- 
 ment having been obtained against him for debt, two 
 Judges' orders, under 1 & 2 Vict. c. 110, ss. 14 and 15, 
 charging his legacy, were served on the Bank of England. 
 In consequence of these orders, the Bank refused to pay 
 the dividends upon the whole fund of stock to the tes- 
 tator's executors ; but the Court of Exchequer decided 
 that the Bank had no power to withhold the dividends 
 from the executors, who were the legal owners thereof, and 
 with whose responsibility as to the proper application of 
 the money the Bank had nothing to do (e). 
 
 Another of these rights is, that of a mortgagor to 
 redeem an estate or chattel, whether real or personal, 
 mortgaged by him, a right to which we have already 
 alluded, and to which we venture again to refer. It is not, 
 however, merely a right, it is an estate in land that is mort- 
 gaged, and, as a right, it is one of an absolute character, 
 not simply an indulgence to the mortgagor (/). 
 
 An equity of redemption may be regarded in four ways, 
 namely, first, as the' right to redeem a mortgage in fee — 
 to the exercise of which the term is more strictly appli- 
 cable — second, a mortgage of a chattel real ; third, that 
 of a chattel personal ; and, fourth, the right to redeem a 
 pledged or pawned chattel. 
 
 (e) {Fowler v. Churchill and) 
 Churchill v. Tlie Bamk of England, 
 11 M. & W. 57 ; 12 L. J. Ex. 233. 
 
 (/) Per Kindersley, V.-O., in 
 Cook V. Qrcgson, 3 Drew. 547 ; 25 
 L. J. Ch. 706. 
 
OF PERSONAL PROPERTY. 215 
 
 In the first of these cases, the right is an equitable The equity of 
 estate in the lands mortgaged, and as, in the view of » ademption 
 
 ° ° . 01 a moi-tgage 
 
 Equity, the mortgagor has, until foreclosure, the same in fee desoende 
 ownership in his lands as he had before contracting his gago/s heir "or 
 debt, subject only thereto, the equity of redemption will s^^s to the 
 
 clsvisB© 
 
 descend upon his heir or devolve upon his devisee. In „, .' 
 the other cases, the equity of redemption will belong to chssttei real or 
 the personal representatives of the mortgagor or pledgor, a^^edge,' goes 
 
 The difference between a mortgage and a pledge of totheexe- 
 personalty consists in this; in the former, the property ministrator. 
 alone in the goods is usually transfen-ed, and this is liable Difiference be- 
 
 . I J* J.1 r r J. • J "J.* tween a mort- 
 
 to re-transfer on the performance oi a certam condition — ^^^ ^ 
 that is, payment of' the debt — at or within a stated time, pledge of 
 The contract of pawn, however, passes to the pawnee 
 merely the possession of the property pawned, together 
 with a right to hold it until the conditions upon which 
 the money is advanced shall be performed. 
 
 " In the case of pledges, if a time for redemption is Redemption of 
 
 . pledges. 
 
 fixed by the contract, still the pledgor may redeem it 
 
 afterwards, if he applies to the Chancery Division of the 
 
 High Court of Justice within a reasonable time. If no 
 
 time is specified for the payment, the pledgor may redeem 
 
 it at any time during his life, unless he is called upon to 
 
 redeem by the pledgee ; and if he fails in so redeeming 
 
 it, his representatives may redeem it. But the remedy is Kemedy in a 
 
 in a Common Law Division of the High Court, unless Division of the 
 
 some special ground is shown ; as if an account or dis- ^'s'^ ^°'^''* °^ 
 
 covery is wanted, or there has been an assignment of the 
 
 pledge " {g). 
 
 AJthough a mortgage as regarded by law is a different Mortgagor has 
 thing from a mortgage in the eye of Equity, yet the mort- redeem his 
 gagor of lands has also at law a right to redeem his property, property by 
 
 •J J 1, 1, • • XI, r J XI, 1, -x statutelaw 
 
 provided he be in possession thereof, and there be no suit under certain 
 faction now] pending for redemption or foreclosure (h). In circumstances ; 
 Equity, however, the mortgagor has this right unfettered tnt the right 
 
 ^ •" o o o in equity exists 
 
 (g) Sm. Man. Eq. tit. 3, ch. 3, (h) 15 & 16 Vict. c. 76, ss. 219, 
 
 s. 3. 220. 
 
■216 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 under all cir- 
 cumstances 
 before action 
 of foreolosoi-e. 
 
 Sale at request 
 of the parties ; 
 
 or tinder 23 
 & 2i Vict. u. 
 145. 
 
 Redemption of 
 mortgage. 
 
 Who may 
 redeem. 
 
 Kedemption 
 must be of 
 the whole 
 mortgage. 
 
 Descent or 
 devise of a 
 mortgaged 
 
 estate. 
 
 Mortgagor's 
 heir or devisee 
 not entitled to 
 have the debt 
 paid out of his 
 personalty, 
 
 by any considerations as to possession, &c., nor can it 
 be taken away by any contract between himself and 
 the mortgagee for that purpose. Of course, if he does 
 not repay his debt within a reasonable time, even Equity 
 will allow the mortgagee to bring an action of foreclosure, 
 that is to say, to have his debtor's equity of redemption 
 barred for ever. At the request of either party, also, a 
 sale of the property may be decreed (i) ; and again, subject 
 to the provisions of the mortgage deed, a sale may take 
 place under 23 & 24 Vict. c. 145, ss. 11 — 16, where the 
 mortgage is of heritable property, but not otherwise (k). 
 
 A mortgagor may redeem his property by tendering the 
 amount of his debt and interest at the time appointed for 
 its payment, or at any time after, on giving six months' 
 notice of his intention to the mortgagee ; but he cannot 
 redeem before the date specified in the deed creating the 
 mortgage. 
 
 Whoever actually has an interest in the redemption of 
 a mortgaged property may redeem it ; moreover, if the 
 mortgagee accepts his principal interest and costs from 
 any person, he thereby admits such person to possess the 
 right to redeem, and accordingly is bound to convey to 
 him the legal estate and deliver up the title deeds thereof, 
 reserving, however, the equities of all other persons 
 interested (I). But in order that the mortgagee may be so 
 bound, the intervening purchaser must have contracted 
 for the whole of the estate, and must also have accepted 
 the title of the mortgagee (Q. 
 
 If the mortgagor of a fee simple estate dies intestate, 
 his estate wUl descend to his heir; but he may, if he 
 thinks proper, devise it. He may also, by his Will, 
 directly or impliedly — but the implication must be very 
 distinct — signify that his personal property shall be ap- 
 
 (i) 15 & 16 Vict. c. 86, a. 48. 
 
 (i) Accordingly mortgages of 
 chattels personal are not -within 
 the operation of this statute. 
 
 {I) Pearce v. Morris, L. R. 8 Eq. 
 217; 5 Ch. 227 ; 39 L. J. Ch. 342, 
 Judgt. 
 
OP PERSONAL PROPERTY. 217 
 
 plied to the payment of the mortgage debts owing by ™iessacon- 
 
 him, or may, by deed or other document, expressly so tiouVe'ex^' 
 
 direct (m). In other words, unless the mortgagor by his pi'^ssed by the 
 
 Will, deed, or other document, expressly directs that his 
 
 devisee or heir shall not pay his mortgage debts, then 
 
 they will be respectively liable to do so : if on the other 
 
 hand he expresses a "contrary intention," that is, one 
 
 contrary to the devisee or heir paying them, then the 
 
 personalty must be resorted to for payment. 
 
 In Woolstencroft v. Woolstencrofi, the testator directed Wo^tencroft 
 
 that all his debts should be paid by his executors out of croft. 
 
 his estate ; and it was held that a mortgaged estate devised 
 
 by him was liable to the payment of the mortgage debt, 
 
 and not the personalty. (30 L. J. Ch. 22.) 
 
 Locke King's Act (n) declares that the heir or devisee ^"^^ ^ng's 
 
 • . Act, 
 
 upon whom a mortgaged estate descends or devolves, shall 
 
 not be entitled to have the mortgage debt discharged or 
 
 satisfied out of the deceased's personal estate, or any other 
 
 of his real estate, except where the contrary intention (o) 
 
 on the part of the deceased, already alluded to, shall have 
 
 been signified by him. The statute, 30 & 31 Vict. c. Explanatory 
 
 69 (p), follows up this by enacting that a general direction 
 
 for payment of all debts out of personal estate shall not 
 
 be deemed to be a declaration of an intention contrary to 
 
 (m) 17 & 18 Viot. 0. 113, known tlie Law relating to the Administra- 
 as Locke King's Act (Jan. 1, 1855). tion of deceased persons. " 
 As to what is " a contrary or other (o) See note (m), supra, concern- 
 intention" under this statute, and ing the expression — "a contrary 
 also under its Amendment Act, 30 intention" within the meaning of 
 & 31 Vict. c. 69 (1867), see Jfoore Locke King'sAct, also the additional 
 V. Moore, 1 De G. J. & S. 602 ; 32 cases of Coleiy v. Cokby, L. K. 2Eq. 
 L. J. Ch. 605 ; Nelson v. Page, L. 803 ; Browmon v. Lwwrame, L. R. 
 R. 7 Eq. 25 ; 38 L. J. Ch. 138, and 6 Eq. 1 ; 37 L. J. Ch. 351 ; Coote v. 
 the Jndgt. of Giffard, V.-C, but Lowndes, L. R. 10 Eq. 376 ; 39 L. J. 
 particularly read the Judgt. of Sir Ch. 887 ; also as to the meaning 
 G. Jessel in Gall v. Fenwick, 43 and intent of 30 & 31 Vict. c. 69, 
 L. J. Ch. 178, in which he declares especially see, as before advised, 
 the case of Eno v. Tatham, once an the judgment of Sir G. Jessel, M. R., 
 authority, to have been expressly in Gall v. Fenmck, 43 L. J. Ch. 178. 
 reversed by the Satute 30 & 31 Vict. (p) "An Act to explain the 
 c. 69. operations " of the above. , 
 («) Intituled " An Act to amend 
 
 Act. 
 
218 
 
 WILLS OF PERSONAL PROPERTY. 
 
 A general di- 
 rection by a 
 mortgagor 
 testator to pay 
 his debts mil 
 not primd 
 facie include 
 his mortgage 
 debts. 
 
 A mortgaged 
 estate is pri- 
 marily liable 
 to the burden 
 of the debt 
 thereon. 
 
 Proportionate 
 liability of the 
 Tarions por- 
 tions of the 
 estate. 
 
 Case. 
 
 rights under 
 Locke King's 
 Act. 
 
 the rule established in Locke King's Act, unless the terms 
 of the Will expressly, or by necessary implication, refer to 
 all or some of the testator's debts or debt charged by way 
 of mortgage on any part of his realty. In other words, 
 a general direction by a testator to pay his debts, will not 
 primd facie, include his mortgages ; but if he wishes such 
 to be the case, he must express himself plainly to that effect. 
 
 Where a mortgagor's estate descends to his heir or goes 
 to a devisee, and there is no contrary intention expressed 
 as to the primary liability of such estate to bear its own 
 burden, the estate will, as we have seen, be responsible 
 for the debt for which it is a security. If the estate con- 
 sist of various hereditaments, each of which is mortgaged^ 
 then, as between the different persons who may claim 
 under the mortgagor, each of such charged hereditaments, 
 according to its value, shall be liable for a proportionate 
 part of the various debts charged on the whole estate (q). 
 
 Accordingly, where A. mortgaged freeholds and lease- 
 holds together, and died intestate, in 1857, it was held, 
 as between his heir and the administrator of his personal 
 estate, that the two classes of property mortgaged must 
 bear the burden rateably (r). 
 
 Leaseholds are not directly mentioned in Locke King's 
 Act (s) ; but, as stated by Sir G. Jessel in Gall v. Fenwick, 
 this was probably owing to a slip of the draftsman of that 
 statute. Such however, being the case, leaseholds are 
 exonerated from the payment of a mortgage debt in fee, 
 and the payment must be apportioned between the two 
 species of property, when the testator devises mortgaged 
 estate composed of freeholds and leaseholds. 
 
 But as to the Tnortgagee's right under Locke King's 
 Act, nothing contained therein shall affect in any way the 
 mortgagee's claim to obtain payment of his debt out of 
 
 (q) Locke King's Act. 
 
 (r) Evans v. Wyatt, 81 Beav. 
 217; Idpseomb v. Zipscomh, L. R. 7 
 Eq. 501 ; 38 L. J. Ch. 90, followed 
 in De Sochefort v. Dawes, 40 L. J. 
 
 Ch. 625 (Equitable mortgage) ; Gall 
 V. FenvMk, supra. 
 
 (s) Solomon v. Solomon, 33 L. J. 
 Ch. 473. 
 
OF PERSONAL PROPERTY 219 
 
 any of the mortgagor's property ; nor does the Act refer 
 to claims under Wills, deeds, or documents before Jan. 
 1, 1855, made concerning mortgaged estates. 
 
 The case of Gall v. Fenwick was shortly as foUows : — GaU v. Fm- 
 A testator. P., devised all his lands in X. to two trustees "^ 
 whom he also appointed executors on trust for sale. He 
 likewise devised four other estates to the same trustees on 
 various trusts, and also all his personal estate not other- 
 wise disposed of, and the moneys to arise from the sale of 
 the estate at X., upon trust, to pay all his just debts, &c. 
 Two of the above estates were subject to a mortgage of 
 ^6000, and one of them comprised leasehold and freehold 
 property. The question, under these circumstances, was. The question 
 whether the mortgage debts of the testator should be "* ^^^ '^^■ 
 paid out of the estates thus subject thereto, or out of the 
 fund expressly created by the testator himself for the pay- 
 ment of his debts. Now in this Will, it is seen that, nq intention 
 although the testator's direction is, that his debts shall be manifested by 
 
 „ . . „ , 1 1 1 • r ™® testator 
 
 paid out of a mixed fund, created by him for that pur- tiiat his mort- 
 pose, there is no intention manifested by him that the toTeTi^crbv 
 mortgage debts shall not be paid by his devisees. Ac- the devisees. 
 cordingly. Sir G. Jessel, M. R, held that the mortgage ' 
 debt of the testator must be apportioned between the 
 devised freeholds and leaseholds, according to their re- 
 spective values, at the date of the testator's death. He 
 also held that, the sum apportioned in respect of the lease- 
 holds was to be paid out of the mixed fund provided by 
 the testator for payment of his debts, and expressed an 
 opinion that the word " debts " did not exclude mortgage 
 debts in the case of the personalty, and did include them 
 in the other two funds mentioned above. 
 
 The mortgagor of a fee simple estate has, then, in Mortgagor's 
 Equity, an actual beneficial, though no longer legal, estate, mortgaged 
 which, subject to the mortgage debt, may descend to his property- 
 heir, or be devised, granted, or entailed, just as though no 
 incumbrance existed on it at all, for the mortgagee holds 
 it only as a pledge or security for his debt. " In a word, 
 the person entitled to the equity of redemption is in 
 
220 
 
 WILLS OF PERSONAL PROPJERTY. 
 
 The equity of 
 redemption is 
 an equitable 
 chose in 
 action. 
 
 It may itself 
 be mortgaged. 
 
 Its nature as a 
 security. 
 
 Second mort- 
 
 Eigbt of tbird 
 mortgagee 
 "witbout notice 
 of tbe other. 
 
 Equity of re- 
 demption of a 
 mortgage in 
 fee, legal assets 
 by statute. 
 
 Proceeds of 
 lands to be 
 sold for pay- 
 ment of debts 
 form equitable 
 
 Equity of re- 
 
 Equity considered the owner of the estate, — the mortgagee 
 being treated as a mere incumbrancer." 
 
 The equity of redemption — which may perhaps be styled 
 a chose in action of an equitable character — may so far 
 exist, independently of the estate which is mortgaged, that 
 the right to redeem may itself also be mortgaged ; but in 
 general this is not a very valuable security, unless, of course, 
 the sum advanced by the mortgagor is small in comparison 
 with the value of the estate. Even in this case, however, it 
 is to be borne in mind that the mortgagee of the equity of 
 redemption would not be able to secure the estate without 
 first redeeming the mortgage on that ; and again, if a sub- 
 sequent incumbrance were effected on the estate, and no 
 notice were given of the former one, the third mortgagee 
 would obtain priority over the mortgagee of the equity of 
 redemption (t). This right of the third mortgagee over the 
 second is thus expressed in the simple but forcible words 
 of the head note to Marsh v. Lee : — " The third mortgagee 
 having obtained the first mortgage, and having the law 
 on his side, and equal equity, he shall thereby squeeze out 
 and gain priority over the second mortgage." 
 
 The equity of redemption of a mortgage in fee is legal 
 assets by statute (m), that is to say, it is regarded as capable 
 of being reached by an executor or administrator as such 
 by virtue of his office. Conversely of the latter part of 
 the above statement, whatever can so come to an executor 
 or administrator, formerly could be made available in a 
 Court of law, as legal assets ; but if lands be directed to be 
 sold to pay off a testator's debts, then the proceeds of the 
 sale will be deemed equitable assets. 
 
 The equity of redemption arising from mortgages of 
 
 (t) See the luminous judgment of 
 Lord Korthington in Belchier v. 
 Butler, 1 Eden. 529 ; and on the 
 subject of tacking incumbrances, 
 Marsh v. Zee, 2 Vent. 337 ; 1 L. C. 
 Eq. 611, and the notes thereto. See 
 also the more recent case of Beevor 
 V. iMek, L. E. 4 Eq. 537; 36 
 
 L. J. Ch. 865, as to the rights of 
 several persons who have interests 
 in an equity of redemption. 
 
 (u) 3 & 4 "W. 4, c. 104. As to 
 the distinction between legal and 
 equitable assets, see 2 Wms. Exors. 
 pt. 4, bk. 1, ch. 1, 1680 and 1682, 
 n. {I). 
 
OF PEESONAL PROPERTY, 221 
 
 chattels, real or personal, is considered now as legal demption of 
 
 assets (x). In other words " .... it has been decided chattels real 
 
 that chattels, whether real or personal, mortgaged or ' 
 
 pledged by the testator, and redeemed by the executor, 
 
 shall be assets at law in the hands of the executor, for so 
 
 much as they are worth beyond the sum paid for their i^ assets at 
 
 redemption, though recoverable only in Equity '' (y). !*^ 1° *!'® 
 
 This view, it may be observed, though doubted by some, executor. 
 
 is no doubt the true one on this subject, and appears to be 
 
 so considered by the great authority cited below, where 
 
 the opinion of Mr. Story is cited in support of it (y). 
 
 Now as to a mortgagee's interest in the mortgage, we Mortgagee's 
 may venture to repeat that, " Whatever may be the form interest in the 
 of the mortgage, it will be part of the personal estate of property, j 
 the mortgagee. Consequently, if the mortgage be in fee, 
 the heir or devisee of the mortgagee will be a trustee of 
 the land for the executor or administrator, and will, on 
 application, be directed to convey to him " (2). 
 
 The reason of this is, that as the land is only a security a mortgage ia 
 for money lent, and was never anjrthing else but money ™}^ * gei^''^' 
 in the sight of Equity — in short, a general debt — so its 
 quality is maintained, throughout, and when the mort- 
 gaged estate is reconveyed and the debt paid, the money 
 belongs to the mortgagee's executor or administrator. 
 
 But the legal estate will, in case of the mortgagee's Devolution of 
 intestacy (a), descend upon his heir, and the latter must, if mortgagee's 
 the debt and interest be tendered, reconvey the property 
 to the mortgagor or his representatives. The estate, how- y^ ^^ ^ 
 ever, will descend upon the heir only for such purpose, for pose it de- 
 the money paid by the mortgagor or his representatives ^^ir or is 
 will not belong to the heir, but to the executor or adminis- devised. 
 trator of the mortgagee (6). And now, by sect. 4 of " The 
 Vendor and Purchaser Act, 1874," the legal persoTial repre- 
 
 {x) See ante, p. 129. (a) Read Scale v. Syinonds, 16 
 
 (y) 2 Wms. Exors. pt. i, bk. 1, Beav. 406 ; 22 L. J. Ch. 708, as to 
 
 ch. 1, 1682. Escheat. 
 
 {z) 1 Id. pt. 2, bk. 2, ch. 1, (J) Thornhrugh v. BaUr, 1 Ch. 
 
 687 ; and see ante, p. 12. Ca, 283 ; 2 L. C. Eq. 1030. 
 
223 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Conveyance of 
 land with an 
 agreement for 
 re-purchase. 
 
 Pnrcliase from 
 a mortgagee of 
 an estate 
 which another 
 person has a 
 right to 
 redeem. 
 
 sentative of a mortgagee of a freehold estate, or of a copyhold 
 estate to which the mortgagee shall have been admitted, 
 may, on payment of all sums secured by the mortgage,convey 
 or surrender the mortgaged estate, whether the mortgage 
 be in form an assurance subject to redemption, or an assur- 
 ance upon trust. Concerning the power of the legal personal 
 representative of a deceased bare trustee who dies intestate 
 as to corporeal or incorporeal hereditaments of which the 
 latter was seized in fee simple, see 38 & 39 Vict.-c. 87, s. 48. 
 
 If A. were to convey an estate to B., as security for a 
 loan, with a collateral agreement to re-purchase it when 
 convenient, and B. were to die, and A. were afterwards to 
 avail himself of his right to re-purchase, in such case the 
 money repaid would not belong to B.'s executor, but to 
 his heir. The reason of this seems to be founded >on a 
 principle similar to that which makes a mortgagee's 
 interest in his mortgage to all intents and purposes simply 
 equivalent to personalty. If such be the nature of his 
 interest, it is that also of his representatives, but in the 
 other case, there is a conveyance of the estate subject to 
 defeat only, by the carrying into effect of a collateral 
 agreement for re-purchase. Such estate being then bought 
 and paid for, it descends to the purchaser's heir, unless 
 devised, and he or the devisor may sell it again, subject 
 to the covenant. Accordingly, if it may be thus sold, 
 the proceeds of the sale must also be the property of the 
 heir or devisee respectively. Unlike a mortgagee, they 
 would not hold the land as mere security for a debt, on 
 payment of which the land must be reconveyed by virtue 
 of the equity of redemption, but as their own property, 
 until it be bought back by its former owner. 
 
 The same may also be said of a person who unwittingly 
 buys from a mortgagee an estate which the mortgagor 
 thereof has a right to redeem. If such purchaser were 
 to die, and afterwards the estate which he had purchased 
 were to be redeemed, the money paid would belong to his 
 heir or devisee, and not to his administrator or executor (c). 
 
 (c) See Cotton v. lies, 1 Vem. 271. See Coote on the Law of Mortgage, 620. 
 
OF PERSONAL PROPERTY. 238 
 
 This is only in accord with common sense and justice, 
 
 since it is clear that the estate, either in its own form 
 
 or that of its value, was meant by the purchaser to be 
 
 enjoyed by his heii- or devisee only. 
 
 " It is discretionary with a mortgagee, whether he will From what 
 
 proceed, for the recovery of his mortgage debt, against may'^atisfy^^ 
 
 the mortgaged land which has come to the heir or devisee ^ <=^^™- 
 
 of the mortgagor, or against the executor. But if the 
 
 mortgagee recover against the land, the heir or devisee 
 
 shall (unless the case is within the operation of the 
 
 Stat. 17 & 18 Vict. c. 113) be reimbursed out of the 
 
 personal estate of the mortgagor " (d). 
 
 " But the land cannot be exonerated out of the per- Eights of heir 
 i',...i "J" i» !• ■ and devisee, 
 
 sonal estate to the prejudice oi any person havmg a prior jj^^ restricted. 
 
 claim to be satisfied : and, therefore, the heir or devisee 
 
 shall not stand in the place of the mortgagee against the 
 
 personal assets, if by so doing he would disappoint any 
 
 creditor, or any legatee, except the residuary legatee, or 
 
 his wife's claim to paraphernalia (d). 
 
 At the risk of becoming open to the charge of digres- Kemarks on 
 sion and repetition, we have enlarged upon the interesting disditssion. 
 subject of mortgages, their redemption, and the rights of 
 the respective parties in mortgages. The subject, how- 
 ever, is undoubtedly one which appertains to that of 
 Wills of Personalty, and perhaps the precise excuse to be 
 offered to the reader here is for the very imperfect nature 
 of the foregoing sketch. 
 
 The Wills Act of 1838, in its first section, as before Debts and 
 stated, makes the term "personal estate" to include personalty. 
 moneys, securities for money, choses in action, rights, 
 goods, and also debts and credits. 
 
 (d) 2 "Wms. Exors. pt. 4, bk. 1, rank and station in life. These she 
 ch. 2, § 1, 1694 — 5j Para- becomes entitled to at the death of 
 
 in English lai^ means her husband over and above her 
 
 such goods as a married woman is jointure — which is a, provision in 
 
 allowed to hold, after the death of lieu of dower — and preferably in 
 
 her husband — as against his repre- either case to all other persons 
 
 sentatives — besides her dower {Uapa. claiming them. 2 Black. Comm. 
 
 y^epvri). They consist of her ap- 436. 
 parel and ornaments suitable to her 
 
224 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Definition of 
 "debt." 
 
 Debts are of 
 four kinds. 
 
 Definition of a 
 specialty and 
 of a simple 
 contract debt. 
 
 Both kinds 
 now rank 
 pari passu in 
 the adminis- 
 tration of 
 estates. 
 
 Slat. 32 k 33 
 Vict. c. 46. 
 
 Now, a debt has been defined as a sum due, and ac- 
 cordingly, a sum of money borrowed under any circum- 
 stances is a debt, and for the payment of debts of all 
 kinds contracted by a testator the rule of law is that his 
 personal estate shall be primarily liable. 
 
 Debts are usually considered as of four kinds — those due 
 to the Crown, •which take precedence over all others, and 
 are recoverable by extent. Next, those created, or perhaps 
 to speak more accurately, evidenced by a judgment at 
 law or a decree in Equity — now by judgment of the High 
 Court of Justice — and again, those resulting from a special 
 or simple contract. There may also be a debt to the 
 Crown by recognizance, in the nature of a statute - 
 staple (e). 
 
 A specialty debt is one resulting from a transaction 
 evidenced by deed, and itself so secured ; a simple con- 
 tract debt is one not so produced, and therefore not so 
 evidenced (/). 
 
 The stat. 32 & 33 Vict. c. 46, has abolished the priority 
 of the former over the latter species of debts, which, before 
 then, existed. 
 
 This Act declares that, " in the administration of the 
 estate of every person who shall die on or after the 1st of 
 January, 1870, no debt or liability of such person shall be 
 entitled to any priority or preference, by reason merely 
 that the same is secured by or arises under a bond, deed, 
 or other instrument under seal, or is otherwise made or 
 constituted a specialty debt ; but all the creditors of such 
 person, as well specialty as simple contract, shall be 
 treated as standing in equal degree, 'and be paid ac- 
 cordingly out of the assets of such deceased person, 
 whether such assets are legal or equitable, any statute or 
 
 (e) As to this and statute mer- 
 chant, and also that other se- 
 curity for the satisfaction of debts, 
 see 2 Black. Comm. 161—2 ; Coote 
 on Mortgage, U ; 13 Ed. 1, c. 10 ; 
 1 & 2 Vict. c. 110, 0. 11 ; 23 & 24 
 Vict. c. 38 ; and as to the Qperation 
 
 of a judgment, see these statutes, 
 and also 27 & 28 Vict. c. 112. 
 
 (/) See Lord Thurlow's Judgt. 
 in Ancaster v. Mayer, 1 Bro. C. C. 
 464, where it appears that even a 
 mortgage debt need not necessarily 
 be one of specialty. 
 
OF PERSONAL PROPERTY. 225 
 
 other law to the contrary notwithstanding : provided 
 always, that this Act shall not prejudice or affect any lien, 
 charge, or other security which any creditor may hold or 
 be entitled to for the payment of his debt." This Act 
 does not apply to Scotland. 
 
 It is seen that the above statute is not retrospective. Observations 
 and only applies to the administration of the estates of statute. 
 persons dying after Jan. 1, 1870 ; accordingly, it is still 
 important to understand what a specialty debt is (a). We further con- 
 
 '^ Till- 1 sideration as to 
 
 have seen what is meant generally by this term ; but we what consti- , 
 miist also observe that any engagement under seal may g-^ty^ebt" 
 create a specialty debt, and also transform one of a simple 
 contract character into a debt of the former kind. Thus, 
 where A. was indebted to B. on simple contract, and exe- 
 cuted a deed whereby he agreed to charge certain pro- 
 perty with the payment of his debt, and also agreed to 
 further execute such a deed of mortgage as his creditor 
 might require, it was held that the first deed of agree- 
 ment to execute the second amounted to a conversion of 
 the simple contract debt into one of specialty (h). 
 
 Kent which is due, whether the demise, which produces it, ?ent created 
 be created by writing, or only upon a constructive tenancy ranks as a 
 from year to year, will rank as a specialty debt, or, at least, specialty debt. 
 much higher than one by mere simple contract (i). But 
 this doctriue, being founded in privity of estate, wiU not 
 apply where the subject of demise is out of the jurisdic- 
 tion of the High Court of Justice. Accordingly, where q^^ 
 A., the landlord of a sugar estate in Jamaica, let it to B., 
 under the terms of an agreement for a lease, and B. died, 
 owLQg A. rent for the property, it was held by the Lords 
 Justices of Appeal in Chancery, that A. was not entitled 
 
 (g) Because, if tlie deceased Claim, L. E. 12 Eq. 89 ; 40 L, J, 'W'hen priority 
 
 died before Jan. \ 1870, and his Oh. 631. of specialty 
 
 estate is subsequently administered, (h) Sawnders v. Milsorm, L. E. 2 debts is still 
 
 ' the distinction between specialty Eq. 573. °^ importance, 
 
 and simple contracts will be ob- (i) Clough v. Frewih, 2 Coll. C. 
 
 served. &e,eKiddv. Boone, Evam's C. , 277 ; 16 L. J. Ch. 24. 
 
226 
 
 WILLS OF PEBSONAL PROPERTY. 
 
 debt. 
 
 How a debt 
 may be re- 
 
 By deed. 
 
 By parol. 
 
 Effect of each 
 mode. 
 
 Creditor ap- 
 pointing his 
 debtor executor 
 of his Will. 
 
 All debts are 
 bequeathable. 
 
 What sums 
 pass by a Will 
 under the 
 name of 
 "debts." 
 
 to rank as a specialty creditor in respect of this debt of 
 rent, for the reason above mentioned (A;). 
 
 A debt extinguished otherwise than by its payment in 
 full is' said to be released, and this may be effected either 
 directly by the creditor himself, or indirectly, by operation 
 of law. 
 
 Thus, he may release it by deed or by a parol arrange- 
 ment. If the creditor adopt the former mode, and receive 
 a smaller sum than that due to him, it is not necessary that 
 any consideration should appear for the favour shown to 
 the debtor, no matter how disproportionate may be the 
 sum paid by him to the amount of his debt. 
 
 On the other hand, should a creditor release his debt by 
 parol, then the consideration for such release must appear, 
 even though the agreement between the parties be that 
 the sum paid and received shall be in satisfaction of all 
 demands (t). 
 
 An indirect mode of releasing a debt in law, is by the 
 creditor appointing his debtor his executor (m). Such a 
 proceeding obviously has this effect, because, as the 
 executor is the person to sue for money due to his testator, 
 he is not likely to sue himself, nor, as a matter of law, 
 could he do so. Equity, however, requires the executor 
 in this case to account for the debt as part of his testator's 
 assets (n). 
 
 All debts which are due to a testator are chosee in 
 action, an(^ may be bequeathed by him as legacies ; but, 
 although this is so, it may, of course, be a question as to 
 what will pass by his Will under this denomination. 
 
 An examination of the various cases on this subject 
 seems to enable us to frame the following general rule 
 as to what property is carried by a simple bequest of 
 
 (Jc) Viiicent v. Godson, 1 Sm. & 
 G. 384 ; 22 L. J. Ch. 747 ; affirmed 
 in 4 De G. M. & G. 546 ; 23 L. J, 
 Ch. 121. But on the subject of ad- 
 ministration of assets in Equity, 
 read the notes to Silk v. Prime, 2 
 
 L. C. Eq. passim. 
 
 (Z) Add. Cent. 974. 
 
 (m) Id. 922. 
 
 (i») 2 Wms. Exors. pt. 3, bk. 3, 
 Ch. 2, s. 9, 1314. 
 
OF PERSONAL PROPERTY. 227 
 
 " debts,'' with nothing superadded thereto. If it can be 
 shown that there is due to the testator sums of money, 
 resulting from any transactions (o) or from any state of 
 circumstances existing at the time of his death (p), such 
 sums will be due to his personal estate, or to specific 
 legatees, if any be named in his Will, provided that there 
 be sufficient effects for the payment of his own debts. But 
 only such sums of money themselves so due to the testator 
 and plainly disposed of will be considered as the debts, 
 and in the absence of a contrary direction nothing gained 
 by such sums as interest, will pass with the debts (q). 
 
 Of course, as in all cases, it is competent to the testator The applica- 
 to so word his Will as to give a different effect to the ^^Jg gubiect to 
 ordinary meaning of- any terms he may employ; but we context of 
 now refer only to the meaning of " debts " standing alone 
 and unexplained. 
 
 The above rule as to the legatee of a debt being un- Rule subject to 
 able to claim any arrears of interest thereon, is, as stated ^^^^^l^^ 
 in enunciating it, one of a general character, and its 
 operation wiU be controlled by any terms having a con- 
 trary effect, in which a testator may please to express 
 himself If these should indicate that the legatee shall, 
 in addition to taking the debt itself, also receive all 
 interest that may happen to be due thereon, then of 
 course the rule in question must bend to the testator's 
 directions. The following case is in point (r) : — A testator Illustrative 
 in his Will expressed himself thus : " I give all my 
 interest and claim on household property in N., be- 
 longing to the successors of the late P., a mortgagee, on 
 which I have a mortgage of £1500, &c.," " to the plaintiff 
 his heirs and assigns for ever." The case was heard in 
 
 (o) Roberts v. Kuffim,, 1 Atk. 112. that whicli exists between a banker 
 
 ip) Carr v. Carr, 1 Mer. 541, and his customer. See ante, p. 15, 
 
 note, where Sir "W. Grant, M. E., note (x). 
 
 held that money in the hands of (?) 1 Eop. Leg. 288. 
 
 a testator's banker, would pass (r) GKbbon v. Gibbon, 13 C. B. 
 
 by a bequest of debts, because the 205 ; 22 L. J. C. P. 131. 
 
 relation of debtor and creditor was 
 
 Q 2 
 
 case. 
 
228 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Creditojf 
 appointed to 
 be his debtor's 
 executor, or 
 
 administrator. 
 
 Executor, 
 when a cre- 
 ditor, cannot 
 retain out of 
 
 When there 
 are legal and 
 equitable 
 
 the first instance by the County Court Judge of Gateshead, 
 who decided that the arrears of interest did not pass to 
 the legatee ; but this decision was reversed on appeal 
 to the Court of Common Pleas, that Court holding that 
 the arrears of interest did pass. The judges were tinani- 
 mous in their opinion that the words italicized, clearly 
 indicated the intention of the testator to pass both the 
 debt and the interest without any limitation of any kind 
 on the claim which he himself had against the mortgagee. 
 The words " on which I have a mortgage of £1500," were 
 relied on as showing the contrary, but it was held that 
 these amounted merely to a description of the property in 
 which the testator's claim and interest existed. Here, 
 then, we have another instance of a testator's power to 
 prevent, by the phraseology he may think proper to 
 employ, the application of a general construction to the 
 terms of his Will. 
 
 A creditor who is appointed by his debtor to be his 
 executor, has the privilege of retaining for the sum due to 
 him in preference to all other creditors of equal degree (s). 
 Also " if administration be granted to a creditor as such, 
 and afterwards be repealed at the suit of the next of kin, 
 such creditor shall retain against the rightful adminis- 
 trator" (t). The above statements refer to legal assets 
 only ; for where the assets are equitable, that is those which 
 can be made available only in the Chancery Division of 
 the High Court of Justice, an executor cannot, nor can any 
 other creditor, retain the whole of the debt due to him 
 from the testator, but only a proportionable part with the 
 other creditors (it). And " where there are legal as well as 
 equitable assets, if the executor retains the legal assets in 
 part payment of his debt, he cannot claim to be paid a pro- 
 portionate part with the other creditors out of the equit- 
 
 (s) 2 Wms. Exors. pt. 3, bk. 3, eh. 
 2, s. 6, 1039 ; also § 9, 1316 et seq^ 
 {t) Id. 1045. 
 
 (m) 2 L. C. in Eq.— Notes to 
 Silk V. Prime, 130. 
 
OF PERSONAL PROPERTY. 229 
 
 able assets until they have received thereout as much as 
 he has retained out of the legal assets " (v). 
 
 In a former portion of our work we stated that if land be Land sold or 
 
 sold for the payment of debts, the money realized for this o'^,'if™'i *» ^^ 
 
 purpose forms equitable assets. It is, however, to be borne ment of a 
 
 in mind that such is usually the case only where a testator ^g^i^^*?"^ ^ 
 
 himself directs this to be done ; for if the lands are ordered Testatm^s 
 
 by the Court to be sold in case of a deficiency of assets, directions to 
 
 . sell necessary 
 
 the proceeds then become legal assets, that is, can be to make the 
 
 reached " by an executor, simply virtute oijflcii," through proceeds equit- 
 •^ ^ L J jj J o able assets. 
 
 the aid of a Common Law Division of the High Court 
 
 of Justice. Yet, in a case decided by the late Vice- Direction 
 
 Chancellor Wickens, that learned judge held that the ""^* ^« *"f 
 
 , . payment of 
 
 proceeds of realty, which had been from time to time debts, 
 ordered by the Court to be sold for payment of debts, 
 formed equitable assets in the bands of a trustee for the 
 sale thereof (iy). 
 
 The testator's direction to sell his land need not directly 
 purport to be for the express purpose of making it available 
 for payment of his debts («). At the same time, if he should 
 order his realty to be sold for conversion into personalty 
 merely from caprice, or with any view other than that 
 of making it answerable for his debts, and then in the 
 ordinary manner direct his debts to be paid, the property 
 so converted into money would most probably be con- 
 sidered equitable assets, as was held by Sir J. Leach, M. K, 
 in Soames v. Rohvnson (y). It appears to have been a indirect 
 question in this case whether if there had been no charge expressions 
 
 .-,,,, T .,, , ,,, ° may amount 
 
 01 debts, the produce of the real estate would have been to direct 
 equitable assets, but common sense shows that between ex- °'^^^^- 
 pressions devising realty for payment of debts, and devising 
 for mere conversion into money, which itself is to be applied 
 for that purpose, there cannot exist any material dif- 
 ference. 
 
 (v) 2 L. 0. in Eq.— Notes to of Lord Camden, L. C. 
 
 Silh V. Priine, 130. (y) I'My. & K. 500 ; 2 L. J. Ch. 
 
 (w) See note (s), post, p. 230. 163. See also Bain v. Sadler, 
 
 (x) Silh V. Prime, supra, Jndgt. next note. 
 
230 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Trustee for 
 sale. 
 
 Bain y, 
 Sadler. 
 
 Real and per- 
 sonal property 
 of a testator 
 ■ liable for his 
 debts. 
 
 Progress of 
 the law. 
 
 The law is the same where realty is devised to a trustee 
 for sale and payment of debts, even where such trustee is 
 also a creditor and the executor of the testator. The 
 following case is in point {z). A. devised realty to B. in trust 
 for sale and payment of his debts. B. was likewise one of 
 A.'s creditors and also his executor, and as a creditor he first 
 retained a portion of his debt out of the legal assets which 
 had come into his hands, and then claimed the rest out 
 of the equitable assets pari passu with the other creditors. 
 He also attempted to maintain that, the union of the two 
 characters of trustee for sale and executor in the person 
 of a creditor, would give him rights analogous to those 
 which he possessed simply as executor, but not as trustee. 
 Vice-Chancellor Wickens, however, declared that the true 
 view to be held in such a case was, that the rights of B. 
 were precisely the same whether he was trustee plus exe- 
 cutor or not, and that therefore he had no right of re- 
 tainer. His Honour accordingly held that the other 
 creditors were to be paid up to a level with the executor, 
 and then that the equitable assets were to be distributed 
 rateably. 
 
 The tendency of the law during the present century has 
 been to place real and personal property on an equal 
 footing for one purpose at least, namely, the just payment 
 of ibs deceased owner's debts. It was not, however, until 
 the year 1807 that realty was answerable for ordinary 
 debts,, unless payment of them, had been arranged for 
 during the deceased's lifetime by deed. In that year, the 
 legislature commenced a reform of the law on this subject 
 by making the fee simple estates of deceased traders 
 liable for their ordinary debts of all kinds ; and in 1833, 
 the fee simple estates of all deceased persons, not charged 
 with the payment of their debts, were made liable to be 
 administered in the Court of Chancery, for the dis- 
 charge of their debts of any kind (a). But where such 
 
 (z) Bain v. Sadler, L. R. 12 1, and Zovegrove v. Cooper, 2 Sm. 
 Eq. S73 ; 40 L. J. Ch. 791, in & G. 271, were not followed. 
 wMch Sail V. Maedonald, 14 Sim. (a) See Statutes 47 G. 3, c. 74 ; 
 
OF PERSONAL PROPERTY. 231 
 
 deed did not mention the heir, and the lands descended 
 upon the latter, he was not liable to discharge his 
 ancestor's obligations. Further, even supposing the heir 
 to have been duly named in the writing under seal, the 
 owner of the land might have devised it to some other 
 person, against whom, as well as the heir, the creditors 
 were unable to enforce their claims. Gradually, this glar- 
 ing defect in our law has been remedied (a), and now, 
 lands, whether they descend — uncharged with the debts 
 of the owner — upon the heir or go to a devisee, are liable 
 for these, where the personalty is insuflScient for their 
 payment. And the general rule of Equity on the subject 
 of estates that are made liable by their owners for their 
 debts is, that a mere general direction by a testator that 
 his debts should be paid, effectually charges them upon 
 his real estate (6). 
 
 The term credit as employed in sect. 1 of the Wills Act Meaniog of 
 of 1838, means the effect of a transaction which may in all « credits" in 
 probability terminate in a debt. As an illustration of this f''"*: ^ °* „„ 
 definition, suppose that A. is the acceptor of a bill of ex- mustyatioj, 
 change for B.'s accommodation. It is the duty of B., in such 
 a case, to provide for the payment of the bill at maturity (c). 
 But there is a possibility of his not doing so, and should 
 he fail to meet the bill, then, in the absence of fraud, the 
 transaction between A. and B. results in a clebt, due from 
 B., the accommodated party, to A., the accommodation 
 acceptor, since the former impliedly contracts with the 
 latter to, indemnify him in case of failure on his own part 
 to meet the bill. On the other hand, should B. perform 
 his implied contract, no debt results, and the bill before 
 payment is a credit, given by the acceptor to the accom- 
 modated party (c?). 
 
 1 "W. 4, c. 47 ; 3 & i "W. 4, c. (J) 2 L. C. E(i.— Notes to Silk 
 
 104, Lord RomiUy's Act, 1833. v. Prime, 130. 
 
 See also H & 12 Vict. c. 87, and (c) See the notes to Base v. ffart, 
 
 22 & 23 Vict. c. 35, the latter regu- 2 Sm. C. L., citing Smith v. ffod- 
 
 lating the powers of trustees as re- son, a principal case in the same 
 
 gaids the payment of a testator's volume. 
 
 debts and legacies. (d) Id. 
 
232 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Another 
 example. 
 
 Ex pa/rte 
 Preacott the 
 first case on 
 this subject. 
 
 Again, wtere goods are sold to be paid for at a future 
 day, the vendee becomes a debtor for tbe value upon the 
 delivery, though payment cannot be exacted from him till 
 the day arrives : in the meantime the vendor is his creditor 
 to that amount, and the effect of the transaction is a- 
 cred/it from the vendor 'to the vendee (e). Indeed, to sum 
 up the matter shortly, we may say that, by the word credit 
 is meant either a debt payable at a future day, or, as 
 before stated, the effect of some proceeding which has a 
 direct tendency to produce a sum due from one person to 
 another — that is a debt. 
 
 We will mention another case by way of illustrating 
 the meaning of the word " credit." 
 
 A., in 1753, was a creditor of B., a bankrupt, for £110, 
 while at the same time he was debtor to him upon a bond 
 for £340, payable in 1756. A. applied to the Court of 
 Chancery that he might be allowed to set off his credit of 
 ^110 against the principal and interest due on the bond 
 so far as it would go, and not be compelled to prove 
 his debt under the commission of bankruptcy and take a 
 dividend on it only. Lord Hardwicke, C, decided that 
 this state o{ affairs disclosed not a mutual debt, but a 
 mutual credit, because the bankrupt had given a credit 
 to A. in consideration of the bond, though payable at a 
 future day, and had given a credit for the debt owed by 
 him upon simple contract. Accordingly, an account was 
 ordered to be taken between the petitioner and the bank- 
 rupt, and the balance thereof only to be paid to the 
 assignees (/). 
 
 The learned editors of Smith's Leading Cases inform 
 us that " rfiuiual credits within the meaning of the 
 bankrupt laws are credits which must in tlieir nature 
 terminate i/n debts" and they express an opinion that this 
 only means such credits as have a natural tendency to 
 
 (e) Smith v. Hodson, supra : 
 from the argument for the plain- 
 tiifs. We only quote the passage 
 in the text by way of explaining the 
 
 meaning of "credits." 
 
 (/) JEx parte Prescoit, 1 
 230. 
 
 Atk. 
 
OF PERSONAL PROPERTY. 233 
 
 terminate in debts, and not such as must ex necessitate 
 rei so terminate. 
 
 Lastly, these expectations of payment from mutual 
 transactions on a future day may be bequeathed, just the 
 same as. debts, properly so called, may be. 
 
 We will now conclude this chapter with a few observa- Domicile, 
 tions on a matter of some importance in relation to our 
 present subject, namely. Domicile. 
 
 ' It was stated by Sir W. P. Wood; V.-C, in his able 
 judgment in Forbes v. Forbes, Kay, 352 — which the 
 reader is strongly recommended to peruse — that " no at- 
 tempt has been made, at least in our law, to define Domicile. 
 I believe," he says, " that any apparent definition, such 
 as a man's ' settled ■ habitation/ or the like, will always 
 terminate in the ambiguity of the word ' settled,' or its 
 equivalents, depending for their interpretation on the in- 
 tention of the party, which must be collected from various 
 i/ndicia, incapable of precise definition." If we may ven- 
 ture to say so, it would probably have been more accurate 
 to say that, " no successful attempt " had been made to 
 define the term domicile, and we insert an " apparent " 
 ■ definition of the word from a popular legal work of refer- 
 ence for the assistance of the reader, who will perceive 
 that the word " permanent," although qualified by " true," 
 contains the. ambiguity objected to by Vice-Chancellor 
 Wood. 
 
 " In a strict and legal sense, that is properly the domicile Definition of 
 of a person where he has his true fixed permanent home *® *®'™' 
 and principal establishment, and to which, whenever he 
 is absent, he has the intention of returning (animus 
 revertendd) " (g). 
 
 The elements which enter into all considerations of Tests of 
 domicile are three, or perhaps we may say that there are D°™'°'l®- 
 three tfests whereby to determine questions arising on this 
 subject. First, had the person, concerning whom the 
 inquiry may take place, the intention of remaining (ani- 
 
 (g) Wliartcii's Law Lex., voce " Domicile.'' 
 
284 
 
 WILLS OF PERSONAL PROPERTY. 
 
 manendi. 
 
 Time. 
 
 Case to 
 illustrate the 
 doctrine of 
 domicile. 
 
 mus manendi), where he locates himself ? Second, how 
 long was he there ? for, as Lord Stowell obser\'ed in the 
 case of the ship Harmony (h), " time is the grand in- 
 gredient in constituting domicile." This, however, it is 
 apprehended, means when the element of time is con- 
 joined with the intention of remaining, because "if a 
 person goes from one country to another, with the 
 intention of remaining, that is sufficient ; whatever time 
 he may have lived there is not [alone] enough, unless 
 there be an intention of remaining." (Per Sir H. J. 
 Fust, in Craigie v. Lewin) (i). Third, if he went 
 away, had he the intention of returning ? Of these ques- 
 tions the most obviously important is the first, because, 
 by the definition of the term " domicile," the main point 
 is to discover what place is, or has been, a person's home, 
 and this will assist in showing whether the place referred 
 to did, or did not, form the permanent locality of his 
 abode. 
 
 The case of Craigie v. Lewin (i), which occurred in 
 1842, was one concerning the domicile of a deceased 
 person, and is one suitable for illustrating some features 
 and principles of the doctrine of domicile. The facts 
 were as follows : John Craigie, a -Lieutenant-Colonel 
 in the service of the East India Company, after a long 
 residence in India, interrupted only by occasional 
 leave of absence, died suddenly in London on the 
 23rd of Nov. 1840, having made and executed a tes- 
 tamentary paper written by himself, appointing Lewin 
 and two other persons his executors. This paper, how- 
 ever, not having been attested by witnesses, was not a 
 valid Will by the law of England, but by the law of 
 Scotland it was so, and, as a matter of fact, the paper had 
 been a.dmitted to confirmation — that is probate — in the 
 proper court of Scotland, of which country the deceased 
 person was a native. From these facts, it will be seen that 
 
 (h) 2 Rob. Adm. Rep. 324. 
 
 (i) 3 Curt. Eco. Rep. 435, and see p. 448. 
 
OF PBESOKAL PROPERTY. 235 
 
 .the question of domicile was here of the utmost import- 
 ance, because, according to the maxim of the jus gentium, 
 Mohilia sequuntur personam; that is to say, movables 
 so far follow the person as to be bequeathable by him ac- 
 cording to the law of his domicile, no matter where the 
 testator himself may be when he makes his Will. If, then, 
 as contended by his executors, Lieut.-Colonel Craigie had 
 his legal domicile in Scotland, the testamentary paper 
 executed by him was a Will by the law of the country 
 of his domicile. If, on the other hand, the Colonel's legal 
 domicile was India or England, then the document was 
 no Will at all, and the deceased died intestate. 
 
 It was shown in evidence, that the deceased person was 
 born of Scotch parents in Scotland in 1786, and that he 
 never left the country of his birth until 1804, in which 
 year he went to India in the military service of the East 
 India Company, and that he resided there almost con- 
 tinuously up to 1837. In this year he came to England 
 on leave of absence, with the power to be away from duty 
 for five years, and he remained here^ — still retaining his 
 commission, — until his death, in Nov. 1840. It appears to 
 have been in the expectation of the deceased that, before 
 the termination of this period of leave of absence, he should 
 be promoted to the full rank of Colonel, a circumstance 
 that would, by the rules of his service, have precluded the 
 necessity of his return to India, — to which, it was admitted, 
 he had a decided aversion, — unless required to do so under 
 orders for service (k). On returning home from India in 
 1837, Lieut.-Col. Craigie, in the same year proceeded to 
 Scotland, where he remained from October until August, 
 1839, living principally in furnished houses. It appears 
 also, that during his leave of absence, he entered into 
 a negotiation for the purchase of a house in Edinburgh, 
 but not being able to carry this to a conclusion, he 
 left* Scotland, proceeded to Plymouth, where he resided 
 
 (k) See The Attorney-General v. Ex. 284, to be presently referred to 
 Pottinger, 6 H. & N. 733 ; 30 L. J. at length. 
 
236 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Judgment of 
 SirH. J. Fust. 
 
 Ammwi et 
 facimm, necea- 
 sary to create 
 a diange of 
 domicile. 
 
 Length of 
 time not im- 
 portant in 
 
 for a time, then went to Scotland again to attend a funeral, 
 again returned to London, where, while on his way to 
 Plymouth to join his family, he suddenly died. 
 
 In the course of his judgment on these facts. Sir H. J. 
 Fust made the following observations : — " .... Now I 
 do think, that if all circumstances had combined to favour 
 the deceased's wishes, he would have taken up his resi- 
 dence in Scotland ; but still the question remains, whether 
 there was an abandonment of the Indian domicil, and if 
 there was the animus and factum of a domicil in Scot- 
 land The question remains for the Court to 
 
 determine — it being an admitted fact that the deceased 
 went to Scotland in 1837, and remained there until 1839 
 — whether he went there animo manendi, and the solu- 
 tion of that question depends very much on his peculiar 
 situation at the time, that is whether he was in a con- 
 dition to abandon his acquired domicil in India . . . ." 
 
 " When the deceased came to this country, he quitted 
 India on temporaiy absence, which might be converted 
 into a permanent quitting, by a certain event happening 
 [namely, his attaining the rank of full colonel before his 
 leave of absence expired] in the interval between the time 
 of the commencement of his absence and the time for his 
 return. I cannot think that the fact, that he was absent 
 from India, when he was looking to a probable return, 
 can be said to be quitting that country animo TnwneTvdi 
 in another : he was indeed in another place, but for a 
 temporary purpose only." 
 
 " . . . . The important question is, What is necessary 
 to constitute a change of domicil ? There must be both 
 anvmus et factum : that is the result of all the cases. 
 This case must depend on its own circumstances; the 
 principle on which it is to be determined is the same in 
 all cases, and that principle extracted from all the cases, 
 is this, that a domicile once acquired remains until another 
 is acquired, or that first one abandoned. I admit all that 
 has been said in this case, that length of time is not im- 
 
OF PERSONAL PROPEETY. 237 
 
 portant, for one day will be sufficient, provided the animus this particular 
 exists . . . ." '''^'• 
 
 "I think the Indian domicil was not abandoned, but 
 that the deceased was still domiciled in India. If he had 
 died in Scotland that would not in the slightest degree 
 have changed my opinion ; he was domiciled in India : if 
 the question had been, whether he was domiciled in 
 England or ia Scotland, if that point had been in eqwili- 
 hrio, the place of birth and origin might have turned the 
 scale .... When I look for the animus and the 
 factum,, I do not find sufficient to enable me to say, that 
 the deceased had dissolved his connection with India; 
 and I think, under all the circumstances, that the Scotch 
 law cannot determine on the validity or invalidity of this 
 
 Win It appears to me that this asserted Will is 
 
 null and void according to the law of India [which is the 
 
 same as that of England for this purpose], the place of 
 
 domicil of the party; and that administration must be 
 
 granted according to the law of England . . . . " Such 
 
 being the case, the decision in Craigie v. Levjin, amounted Main point of 
 
 to this, that a person's domicile of origin does not revive xcmnT ^' 
 
 until an acquired domicile is finally abandoned. 
 
 The two terms italicized above, with another, require to Domicile of 
 ' be noticed here. Domicile may be of origin, of choice, or °^^^> ?^°}'^^' 
 
 . , 1 ..,».., , 'or acquisition, 
 
 acquisihon. A man s domicile of origin depends on what 
 at the time of his birth was the domicile of his father. 
 As to this, the law is clear that the personal status indi- 
 cated by the term in question adheres to the subject of 
 it until an actual change is made by which the personal 
 status of another domicile is acquired. It remains, in fact, 
 until a new domicile is derived, and the onus of proving 
 a change of domicile is on the party who alleges it (l). 
 
 The question of domicile is distinct from those of ^"^^a" "* 
 naturaUzation and allegiance (m), because a man may distinct from 
 
 change his domicile as often as he pleases, but not his naturalization 
 
 and allegiance. 
 (t) Bell V. Eeimedy, L. R. 1 H. (m) Haldane v. Eckford, L. E. 8 
 
 L. So. App. 307. E(i. 631. 
 
238 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 No man can 
 be without a 
 domicile unless 
 it be extin- 
 guished by 
 the law. 
 
 Domicile of 
 origin is 
 created by 
 law. 
 
 How it may be 
 extinguished. 
 
 Domicile of 
 choice is 
 created by 
 the party. 
 
 What must 
 occur to effect 
 a change of 
 domicile. 
 
 allegiance, exuere patriam is beyond his power (n). 
 Moreover, to suppose that for a change of domicile there 
 must be a change of political allegiance, is to confound the 
 political and the civil status, and to destroy the distinction 
 between patria and domicilium, (n). 
 
 It is a settled principle that no man shall be without 
 a domicile ; and to secure this end, the law attributes to 
 every individual as soon as he is bom the domicile of his 
 father if the child be legitimate, and the domicile of his 
 mother if the child be illegitimate. This is called the 
 doTTiicile of origin, and is involuntary. It is the creation 
 of the law — not of the party. It may be extinguished by 
 act of law, as for example, by sentence of death or exile 
 for life, which puts an end to the status civilis of the 
 criminal ; but it cannot be destroyed by the will and act 
 of the party (o). 
 
 Domicile of choice is the creation of a person by his 
 own act. When a domicile of choice is acquired the 
 domicile of origin is in abeyance ; but is not absolutely 
 extinguished or obliterated. When a domicile of choice is 
 abandoned, the domicile of origin revives — a special in- 
 tention to revert to it being unnecessary (o). This state- 
 ment of the law coincides with the views expressed by 
 Sir H. J. Fust in Craigie v. Lewin, and if it had been 
 certain that Lieut.-Col. Craigie had meant to abandon 
 the domicile of choice, India, the learned Judge would of 
 course have decided differently. 
 
 As we have seen, to effect a change of domicile there 
 must combine three features — an abandonment of the 
 former domicile, the animus and factum, as to the new one, 
 and the animus manendi in the latter. On the subject 
 of intention required to efifect a change of domicile, as 
 distinguished from the acts embodying such intention, it 
 has been decided that they must be performed a/nvmo mxjb- 
 
 («) Udny V. Vdny, L. E. 1 H. L. 
 So. App. 431. See the judgments, 
 of Lords Hatherley and Westbury. 
 
 (o) Udny v. Udny, supra : 
 Judgt. of Lord Chelmsford. 
 
or PERSONAL PROPERTY. 239 
 
 nendi, that is, with the full mind to settle in a new 
 country as a permanent home, and this is sufficient with- 
 out any intention to change civil status, and apparently 
 even though an intention to retain the old civil status be 
 proved (p). The evidence necessary to support the animurn, 
 manendi ciiust be either express, or such as to show that 
 if the question had been formerly or solemnly submitted 
 to the party whose domicile is in dispute, he would have 
 declared his wish in favour of a change ( p). 
 
 Slighter evidence is required to warrant the conclusion slighter 
 that a man intends to abandon an acquired domicile and to ^'''I'lfiof 
 
 -^ required oi 
 
 resumehis domicile of origin, than that he means to abandon intention to 
 
 his domicile of origin, and to acquire a, foreign domicile (q), acquired*" 
 
 An acquired domicile may be defined as that place domicile in 
 
 , 1 1 , -1 •,! , , !• favour of that 
 
 where a person has voluntarily, without any sort ot com- of origin than 
 pulsion, fixed the habitation of himself and his family,, not ""^ "''"^• 
 for a mere special and temporary purpose — as for instance domicile 
 that of going abroad for change of air — but with the 
 present intention of making the place to which he pro- 
 ceeds his permanent home, and abandoning that whence 
 he comes. This entire intention is technically termed 
 the animus, the giving up of one locality of residence 
 and settling in another, is the factum,, and when such 
 animus a,nd factum unite, the new domicile is acquired (r), Intention, 
 provided the person has actually resided in the place in residence is 
 question, and that such place is that of his chief and required to 
 
 . , make a new 
 
 permanent residence (s). domicile. 
 
 A wife's domicile is that of her husband (s), the act of Wife's domicile 
 
 that of her 
 husband. 
 (p) Douglas v. Douglas, Douglas Domicile, see Boshins v. Matthews, „ 
 
 V. Welster, L. E. 12 Iq. 617 ; 41 8 De G. M. & G. 13 ; 25 L. J. Ck DoSe. 
 
 L. J. Ch. 74, where the reader will 689. 
 
 find an unusually long array of (r) The above definition is ex- 
 oases and authorities referred to on tracted from the judgment of Vice- 
 the subject of Domicile. Chancellor Kindersley in Lord y. 
 (q) Lord v. Calvin, 4 Drew. 366 ; Colvin, and the dissentient opinions 
 28 L. J. Ch. 361 ; but see the same expressed thereon in Moorhouse, v. 
 case (reported as Moorhouse, v. Lmd, cited above. 
 Lord), 10 H. L. Cas. 272 : .?2 (s) DaVhousk v. McDmmll, 7 CI. 
 L. J. Ch. 295. As to Foreign & Fin. H. L. Cas. 817. 
 
240 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Divorced 
 woman. 
 
 abroad as a 
 public officer. 
 
 Attorney-Gen, 
 T. Pottinger, 
 
 Domicile of 
 a woioaii 
 deserted by 
 her husband. 
 
 marriage producing this effect. Such is an instance of 
 domicile hy operation of law, and remains with the widow 
 until she marries again, when another domicile — that 
 of the next husband — is acquired {t), for a wife cannot 
 have a domicile of her own independent of that of her 
 husband (u). So imperative is the law on this point, that a 
 woman married in England, but who is judicially separated 
 or divorced in Scotland, and marries again, still retains the 
 domicile of her former husband, such Scotch separation 
 being ineffectual to destroy the domicile first acquired {u). 
 And it may be stated generally, that no foreign Court can 
 dissolve the bonds of an English marriage where the par- 
 ties are not hand fide domiciled in the foreign country {u). 
 But it is competent to the Courts of Scotland to entertain 
 a suit to dissolve a marriage contracted in England, where 
 the husband alone is regularly residing in Scotland, and 
 is not there simply for the purpose of obtaining a divorce, 
 and is expecting his wife to join him there (x). 
 
 Residence in a foreign country as a public officer gives 
 rise to no inference of a domicile in that country ; but if 
 already such a person be there domiciled and resident, 
 the acceptance of an appointment in the public service of 
 another country does nothing to destroy the domicile [y). 
 
 The case of The Attorney -General v. Pottinger (z) 
 may here be stated, and it forms an excellent companion 
 to that of Graigie v. Lewin, already referred to in 
 extenso : — Sir H. Pottinger, who was born in Ireland, 
 went in 1804 to India, in the military service of the East 
 
 (i) Gout V. Zimmermam, 5 IS. 0. 
 440. 
 
 (m) Dolphin v. Bobbins, 7 H. L. 
 Cas. 390; 29 L. J. P. & M. 11 ; 
 affirming the judgment of the Com't 
 below, 1 Sw. & Tr. 37 ; 27 L. J. P. 
 & M. 24. It appears that a woman 
 deserted by her husband, may ac- 
 quire a new domicile for herself, 
 although she cannot make her hus- 
 band amenable to the lex fori of her 
 
 new domicile. Ze Stieur v. Le Suew, 
 L. E. IP.'&D. (N. S.)139. 
 
 (x) See Wmrender v. Wtmreiider, 
 2 CI. & Fin. H. L. Cas. 488 ; Pitt 
 V. Pitt, 36 So. Jul-. 522. 
 
 {y) Sharpe and Sharpe v. Crispin, 
 L. E. 1 P. & D. 611 ; 38 L. J. P. 
 & M. 17. 
 
 («) 6 H. & N. 733 ; 30 L. J. Ejf. 
 284. 
 
OF PERSONAL PROPERTY. 241 
 
 India Company, and remained so employed in that 
 country until 1840, having attained the rank of full 
 Colonel in the Company's army, and was therefore enabled 
 to reside in Europe, subject only to orders to return to India 
 in case of his services being there required. In 1841, he 
 went to China as the ambassador of this country, but 
 returned in 1844 to London, where he purchased and 
 furnished a house. He subsequently held two public 
 appointments, the duties of which compelled him to reside 
 abroad. Having resigned these posts, but not his commis- 
 sion in the East India Company's service, he next came to 
 London for a short time, and finally went, for the benefit of 
 his health, to Malta, where he died. Sir Henry had pre- 
 viously, however, made a Will in London, in which he was 
 described as of that place, and while at Malta he executed 
 two codicils, in one of which he was described as then 
 residing in Malta, and in the second as of London, and 
 then residing in Malta. After the testator's death, the 
 Crown claimed Legacy Duty from his executor on the 
 ground that the deceased had died domiciled in England. 
 This claim was resisted, and an information having been 
 filed against the executor in the Court of Exchequer to 
 recover the duty, an answer was given, maintaining that 
 the domicile of the deceased was India and not England, 
 whereupon the facts set out above were proved. The 
 question for the Court — namely, whether Sir H. Pottinger 
 was domiciled in India or England — was an important 
 one for the parties interested in its decision, because if 
 Sir Henry had died domiciled, though not resident in 
 India, no legacy duty could have been claimed by the 
 Crown, the Legacy and Succession Duty Acts only apply- 
 ing to persons and Wills in this country, and personal 
 estates situated here (a). The Court of Exchequer decided 
 that Sir Henry Pottinger was domiciled in England, and 
 Baron Bramwell expressed an opinion that even if the 
 
 (a) See the Judgt. of Lord Cottenham in Arnold v. Arnold, 2 MylL 
 & Cr. 256 ; 6 L. J. Ch. 218. 
 
 B 
 
242 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Domicile exists 
 for commercial, 
 matrimonial, 
 or for testa- 
 mentary pur- 
 
 GoTeming 
 maxim of 
 public law on 
 the subject. 
 
 Personal 
 property 
 follows the 
 domicile. 
 
 Testamentary 
 disposition of 
 realty. 
 
 Annuity for 
 Hves deriv- 
 able from 
 realty accounts 
 real as to its 
 situation, per- 
 sonalty as to 
 its liability to 
 legacy duty. 
 
 deceased had died in Madras, he would still have been 
 domiciled here, because having acquired an English 
 domicile in 1844, and never having had a complete in- 
 tention of abandoning it, his temporary employment in 
 India did not deprive him of his acquired domicile in 
 this country, that is to say, where a question arises as to 
 the rights of persons living in a country at war with 
 another. 
 
 Domicile may exist for commercial, matrimonial, or 
 testamentary purposes, and the governing maxim of 
 public law on the subject, so far as property is concerned, 
 is that Mohilia sequuntur personam. This being so, a 
 man's personal estate is assumed to be situated in the 
 locality of his domicile, and accordingly the liability of his 
 personalty to legacy duty depends not upon his residence, 
 but his domicile. If then an Englishman or a foreigner 
 possessed of personal property abroad, or in a colony, dies 
 domiciled in England, such property is liable to duty, and 
 if an Englishman or a foreigner (&) dies domiciled abroad 
 or in a colony (c), but possessing property here, this pro- 
 perty is not so liable (c), because mohilia sequuntur domi- 
 cilium or personam. But the property to which these 
 statements are applicable must be purely personal, for if 
 the property under consideration even savour of realty it 
 will not be regarded as personalty for the purpose of 
 making the principles enunciated in the cases cited 
 below (c) applicable. 
 
 Accordingly, in a comparatively recent case, an annuity 
 for lives, including the testator's, charged on land in thfe 
 United Kingdom, and bequeathed by a person having a 
 foreign domicile, was held liable to legacy duty (cQ. The 
 
 (i) In re Bruce, 2 Cr. & J. 436 ; 
 2 Tyrrwh. 475. 
 
 (c) Thompson v. The Advocate- 
 Oeneral, 12 CI. & Fin. H. L. Cas. 1 ; 
 The Attorney-General v. Napier, 6 
 Ex. Rep. 217 ; 20 L. J. Ex. X73. 
 
 {d) Ohatfield v. Berchtoldt, L. E. 
 7 Ch. 192 ; 41 L. J. Ch. 265, re- 
 versing a decision of Bacon, V.C., 
 L. R. 12 Eq. 464 ; 41 L. J. Ch. 
 115. 
 
OF PERSONAL PEOPEKTY. 243 
 
 reason of this was, as stated by Lord Justice James, that 
 the annuity referred to was purely real estate by the Com- 
 mon Law of England, in fact estate pur autre vie, but 
 by statute (e) applicable in the same manner as per- 
 sonalty under certain circumstances, which in the present 
 case existed. 
 
 The fundamental principle of this decision, however, is Maxim of law 
 to be found in the rule of law, ImTnobilia sequuntur ^ " ^" 
 situm which is really only a continuation of the maxim 
 before quoted concerning mobilia. The real estate in 
 the above case was situated in England, and the rent- 
 charge issuing out of it being real estate too, though liable 
 to be made applicable as personalty, the Will was by the 
 rules of public law virtually made in this country, or 
 technically speaking, according to the lex loci rei sitw, or Lex lod rei 
 lex sit4s. The fact of the testator dying domiciled abroad "^'^' 
 was of no consequence under such circumstances, because 
 immobilia — that is real estate — sequuntur situm, and 
 therefore legacy duty is payable on legacies given out of 
 real estate situated in this country, even though the tes- 
 tators be domiciled abroad. 
 
 Leaseholds are by 16 & l7'Vict. c. 61, s. 19, considered Leaseholds 
 as real property for the purposes of assessing succession gacoession 
 duty on this species of propertyy which is exempt from duty. 
 legacy, but liable to succession, duty. 
 
 It was stated by Sir H. J. Fust, in the concluding Will of 
 portion of his judgment in Graigie v. Lewin, ante, foi^^iy^ 
 p. 234, n. (i), that it had been held in the cases of Stanley required to be 
 V. Bernes (/), Curli/ng v. Thornton (g), and Be Bonneval to the law of 
 V. Be Bonneval {h), that " a person, in order to make a ^o^^^^^g^t 
 valid Win, must conform to the law of the country where time of his 
 he is domiciled ; just as when he makes no Will he must 
 be supposed to have intended distribution according to 
 the law of that country." The first part of this statement 
 
 (e) U G. 2, c. 20 ; 1 Vict. c. 26, {g) 2 Add. 7. 
 
 s. 6. (A) 1 Curt. 858. 
 
 (/) 3 Hagg. 373. 
 
 B 2 
 
 death. 
 
^44 
 
 WILLS OF PERSONAL PKOPEKTY. 
 
 Administra- 
 tion of in- , 
 testate's effects 
 must "be by the 
 court of the 
 coimtiy of 
 domicile ; 
 
 and according 
 to the loAD of 
 the country of 
 domicile^ 
 
 Will of per- 
 sonalty no 
 longer re- 
 quired to be 
 made accord- 
 ing to the law 
 of the country 
 of domicile of 
 testator at 
 time of his 
 death. 
 
 Statute 24 & 
 25 Vict. c. 
 114. 
 
 Wills made out 
 of the United 
 Kingdom must 
 be in con- 
 formity with 
 
 is now no longer law, and as to the second, it may be 
 remarked that whether a deceased intends or not that his 
 effects shall be distributed according to the law of the 
 country of his domicile, the administration thereof be- 
 longs by law to the Court of such country (i). The same 
 is also true even where there is a Will, for the court of the 
 domicile is the forum concv/rs'ds — that is the court of con- 
 flict—to which the legatees under the Will of a testator, or 
 the parties entitled to the distribution of the estate of an 
 intestate are required to resort (i). Again, the duty of 
 administering personal estate in this country is to be dis- 
 charged by the Courts of this country, though in the per- 
 formance of that duty they will be guided by the law of 
 the domicile (i). 
 
 The rule of law enunciated by Sir H. J. Fust, in the 
 first part of his observation just quoted, continued to 
 exist until the 6th of August, 1861, when, owing to the 
 difficulties which it was calculated to, and did actually 
 create, an Act of Parliament was passed materially alter- 
 ing the rule in question, so far as the WiUs of British 
 subjects are to be henceforth affected by the domicile of 
 their makers (k). 
 
 The statute in question concerns Wills of personal 
 estate made by British subjects ; (1) made out of the 
 United Kingdom, and (2) those made within «the 
 United Kingdom, after the 6th day of August, 1861. 
 According to the provisions of this Act, every Will and 
 other testamentary instrument, made out of the United 
 Kingdom by a British subject, shall, as regards personal 
 estate, be held to be well executed for the purpose of 
 being admitted in England and Ireland to probate, and in 
 Scotland to confirmation, provided certain conditions have 
 been fulfilled by the testator. These are, that his Will 
 has been made according to the fonns required either by 
 the law of the place where such Will was made, or by the 
 
 (j) EnoUn v. Wylie, 10 H. L. Cas. 1 ; 31 L. J. Ch. 402. 
 (4) 24 & 25 Vict. c. 114. 
 
OF PERSONAL PROPERTY. 245 
 
 law of the place where the testator was domiciled when ""e of three 
 the Will was made, or by the laws then in force in that 
 part of Her Majesty's dominions where he had his domicile 
 of origin (J). 
 
 The question as to what may have been the testator's Testator's 
 domicile when he made his Will, or at the time of his the time of 
 decease, is immaterial for the purposes of this statute, so ^^^'"2 tis 
 long as he has complied with those requirements thereof death, need not 
 just described [1). i^tolnT^"' 
 
 As to Wills and other testamentary instruments made case -within 
 within the United Kingdom by British subjects, here 
 again the element of domicile has no place, for such Wills 
 are to be admitted to probate or confirmation, if they 
 have been executed according to the forms required by 
 the laws for the time being in force in that part of the 
 United Kingdom where such Wills, &c., were made (m). 
 
 If the testator after having made his Will changes Change of 
 his domicile, his WiU does not by such subsequent act on testator does 
 his part become revoked or invalid, nor shall the con- ^?,,™^°''® ''^^ 
 struction thereof in consequence be altered by reason of 
 the testator's change of domicile {n). 
 
 The Act is not to have the effect of invalidating any The Act does 
 Will or other testamentary instrument of personal estate previously 
 which would have been valid had the Act not been passed, ^^^ ^'^^• 
 except so far as such WiU, &c., may be revoked or altered 
 by any subsequent Will, &c., made valid by the Act (o). 
 
 This statute extends only to Wills and other testa- ?°'y.t?P''^j 
 
 ■' . to Wuls made 
 
 mentary instruments made by persons who die after by persons 
 the date of the passing of the Act, that is tlie 6th of A^u^st^"" 
 August, 1861; accordingly, the rules of law in force on this 1861. 
 branch of the law of domicile prior to that date must be 
 observed when dealing with the questions connected 
 therewith. These rules will be found fully explained in 
 the work mentioned below, where the chief authorities on 
 
 (Z) Sect. 1. (n) Sect. 3. 
 
 im) Sect. 2. (o) Sect. 4. 
 
246 
 
 WILLS OP PERSONAL PKOPEETY. 
 
 Effect of 24 & 
 25 Vict. u. 
 114. 
 
 The adminis- 
 tration of a 
 deceased per- 
 son's effects 
 belongs to tte 
 court of the 
 country of his 
 domicile. 
 
 the subject are set out and discussed (p). But, to use 
 the words of Sir C. Cresswell, the statute 24 & 25 Vict. 
 c. 114, has rendered it unnecessary to consider whether or 
 not a testator has changed his domicile when he has made 
 his Will abroad and probate of it is moved for here (g). 
 
 It is seen then, from a perusal of the terms of this statute, 
 that when the Will of a British subject made abroad is 
 sought to be admitted to probate in this country, all that is 
 necessary to be inquired into is, whether it is executed, — 
 (1) according to the forms prescribed by the law of the 
 place where it is made ; or (2) by the law of the place 
 where the testator was domiciled when the Will was 
 made ; or (3) by the law then in force in that part of Her 
 Majesty's dominions where the testator had his domicile 
 of origin. Nothing can be more simple or more intelligible 
 than such rules as these ; but of course evidence is required 
 to show the Probate Division of our High Court, that a 
 Will made abroad and presented to it for probate, has been 
 executed according to the law of the testator's domicile, 
 where the second of the grounds of validity mentioned 
 above is relied upon.. Accordingly, where a Scotchman 
 who died domiciled in England, but who had executed in 
 Scotland, while domiciled there, a testamentary paper, 
 naming neither executors nor a residuary legatee, and the 
 Court of Probate was moved to grant letters of adminis- 
 tration with this paper annexed thereto. Sir C Cresswell 
 rejected the motion mainly on the ground that the docu- 
 ment in question was not shown to be a good Will by the 
 law of Scotland (r). 
 
 With regard to the administration to the personal 
 estate of a deceased person where a question of domicile 
 arises, the late Lord Westbury says — in his judgment in a 
 case already referred to (s) — "I hold it to be now put beyond 
 
 (p) 1 Wms. Exors. pt. 1, ht. 4, 
 ch. 2, sect. 6. 
 
 (q) In the goods of Sippon, 8 Sw. 
 & Tr. 177 ; 32 L. J. P. & M. 141. 
 
 (r) In the goods of Stoddart, 2 
 Sw. & Tr. 356 ; 31 L. J. P. & M. 
 195. (1862.) 
 
 (s) JSnohin v. Wylie, 10 H. L. 
 
OP PERSONAL PROPERTY. 247 
 
 all possibility of question, that the administration of the 
 personal estate of a deceased person belongs to the Court 
 of the country where the deceased was domiciled at his 
 death." 
 
 " All questions of testacy or intestacy belong to the All questions 
 Judge of the domicil. It is the right and duty of that °il^^f "'' 
 Judge to constitute the personal representative of the belong to the 
 
 , _. „ fcyrum, 
 
 ueceaseu. d(ymicUii, 
 
 " To the Court of the domicil belong the interpretation Also the inter- 
 and construction of the Will of the testator. To determine constraction of 
 who are the next of kin or heirs of the personal estate of ti^e testator's 
 the estate is the prerogative of the Judge of the domicil. 
 In short, the Court of the domicil is the forum concurs'As 
 to which the legatees under the Will of a testator or the 
 parties entitled in distribution are required to resort." 
 
 His lordship also in the course of his observations, Case of 
 expressed his approbation of the judgment of Lord y™*/j^.^' 
 Lyndhurst in Trotter v. Trotter (t), a case which decided 
 inter aUa, that a Will must be construed according to the 
 law of the country where it is made and where the testator 
 is domiciled. 
 
 Further, Lord Westbury declares it to be dangerous LordWest- 
 and inexpedient for the Court of a foreign country to take ^^^!^ remarks 
 
 r ^ o J on the danger 
 
 upon itself the task of interpreting the Will of a testator of a contrary 
 which is written, not in the language of that country, but above." 
 in the language of the country of domicile. " The 
 utmost confusion would arise, if when a testator dies 
 domiciled in one country, the Court of every other country 
 in which he has personal property should assume the 
 right, first of declaring who is the personal representative, 
 and next of interpreting a Will and distributing the 
 personal estate situate within its jurisdiction according 
 
 Cas. 1 ; 31 L. J. Ch. 402, the judg- the case was raised by the decision 
 
 ment of the House affirming the of the Court of Probate, 1 Sw. & 
 
 decision of the Lords' Justices of Tr. 118. 
 
 Appeal in Chanceiy, 1 De G. F. & (t) 4 Bligh. (N.S.) 502 ; 3 Wilson 
 
 J. 410, 29 L. J. Ch. 341, and that and Shaw, 407. 
 
 of "Wood, V.-C. The question in 
 
248 
 
 WILLS OF PERSONAL PliOPERTY, 
 
 Enoihin v. 
 Wylie. 
 
 Authority 
 Enohin t. 
 Wylie. 
 
 of 
 
 to that iiiterpretatioii." In determining, therefore, the 
 question whether a paper is valid as a testamentary in- 
 strument under 24 & 25 Vict. c. 114, the Probate Division 
 of the High Court of Justice can have regard to the law 
 of one country only at a time {u). Nor, according to Sir ' 
 P. Wilde, J. 0., can the Probate Division grant probate of 
 any foreign Will, unless it is primA facie satisfied by some 
 document or another that such Will has been recognised 
 by the foreign Court, or, unless it is proved to be a valid 
 WUl according to the law of the place where the testator 
 was domiciled. For this purpose, according to the same 
 learned Judge, a notarial certificate is not enough, but it 
 must be shown by an authenticated copy of the sentence 
 of the Court where such Will was pronounced valid {x). 
 
 In Enohin v. Wylie, the testator, Sir J. Wylie, was a 
 British gentleman, a physician, who had acquired a 
 Russian domicile. His Will was made in the Eussian 
 language, and according to the above doctrine was to be 
 construed with reference to the Eussian law. At the time 
 of his death. Sir James possessed veiy considerable pro- 
 perty in Eussia, and also a large sum of money in the 
 English funds, and it was held, first by Wood, V.-C, next 
 by the Lords Justices of Appeal in Chancery, and finally 
 by the House of Lords that the testator had died intestate 
 as to his beneficial interest in the English funds. The 
 decision iu the same case by Sir C. Cresswell in the Court 
 of Probate, to the effect that the executors of Sir J. Wylie 
 were clothed by the competent Court of his domicile with 
 authority to obtain probate of so much of the Will as 
 related to the property in the funds, was reversed. 
 
 Concerning the case just referred to, it was said by Sir 
 Cresswell Cresswell (2/), that the law on the subject which 
 we are now considering, namely that concerning the suc- 
 
 (u) Pechell v. Silderley and the goods of De. Vigny, 4 Sw. & Tr. 
 
 others, L. K. 4 P. & D. 673 ; 38 13 ; 34 L. J. P. &. M. 58. 
 
 L. J. P. & M. 66. {y) Crispin v. Soglioni, 3 Sw. & 
 
 {x) In the goods of Deshais : In Tr. 96 ; 32 L. J. P. & M. 169. 
 
OF PEKSONAL PKOPERTY. 249 
 
 cession to personal property left by a person domiciled in a 
 country other than that where the property is situate, has 
 never been more clearly or forcibly stated than by Lord 
 Chancellor Westbury in Enohin v. Wylie. 
 
 In the case of a person who dies domiciled abroad, a Judgment of 
 judgment of the Court of the domicile is binding as to of domioae 
 any question relatinff to the succession to his personal ^'"'i'^g ™ 
 estate if it be raised by the same parties in both Courts, questions of 
 and the Probate Division of our High Court has no juris- ^"""^^^i""- 
 diction to inquire whether such a judgment is in con- 
 formity with the law of the domicile {y). 
 
 The Probate Division is also bound by the judgment of Judgment of 
 a foreign Court in the case of an executorship which can of a^cUe is 
 only last a certain time according to the law of the country Ending here 
 
 _^ . in questions as 
 
 where the Will creating the executorship was made, and to durability 
 this being so, if by the law of the testator's domicile an ^^j.^^^^"" 
 executorship created by him can continue only for a 
 limited period, the Probate Division will not, after the 
 termination of such period, grant probate to the executor 
 whose term of office has so expired {z). 
 
 A very interesting instance of the connection between In ^ goods of 
 the subject of domicile and testamentary law is seen in a 
 case we will now mention — In the goods of Eaffenel (a). 
 Madame Eaffenel, an Englishwoman by birth, but the 
 widow of a Frenchman, died in France in April, 1854, 
 leaving a Will made during the previous month of the 
 same year. This Will was valid according to the law of 
 England, but was invalid by that of France. M. Rafifenel 
 had died in 1850, and after that event, his widow, who 
 still remained at Dunkerque, the place of her husband's 
 residence, had frequently been heard to express her 
 intention to return to England. In August, 1853, she 
 left Dunkerque, proceeded to Calais, and there with her 
 children and baggage embarked on board a steam packet 
 
 (y) Crispin v. Doglioni, 3 Sw. Sw. & Tr. 24 ; 30 L. J. P. & M. 25. 
 & Tr. 96 ; 32 L. J. P. & M. 169. (a) 3 Sw. & Tr. 49 ; 32 L. J. 
 
 {z) Lancuville v. Anderson, 2 P. & M. 203. 
 
 Saffenel. 
 
250 
 
 WILLS OF PEESONAL PROPERTY. 
 
 Non-abandon- 
 ment of foreign 
 domicile. 
 
 Instance of 
 animus with- 
 out factum. 
 
 Change of 
 domicile m 
 trcmsitv,. 
 
 Actual depar- 
 ture from 
 foreign 
 territory 
 required. 
 
 Difficulty 
 of the point 
 as to change 
 of domicile 
 in transitu. 
 
 Gbonnd of 
 decision in 
 the case of 
 Madame 
 Kaffenel, 
 
 for England. Before the vessel left, however, she became 
 so ill that she was obliged to re-land at Calais, and in 
 November, 1853, left that town for Dunkerque, where she 
 remained until her death, in April, 1854. Probate of the 
 Will above mentioned was moved for in the London Court 
 of Probate, but Sir C. Creswell declined to make the 
 grant, on the ground that deceased had not abandoned her 
 acquired domicile, France. Here then, we have another 
 instance of the necessity for the union of factum and 
 animus in the acquisition of a new, or the re-acquisition 
 of an abandoned, domicile. There can be no doubt concern- 
 ing what the deceased's animus was, but the factv/m was 
 not sufficient ; because although, as argued by the counsel, 
 who moved for probate, there may be a change of a person's 
 domicile in transitu where a final abandonment thereof 
 is contemplated and attempted to be carried out, yet in 
 the case of Madame Raffenel, we see that there was no act of 
 transit, inasmuch as she never left Calais harbour at all. 
 " I cannot," said Sir C. Cresswell, " think that there was 
 sufficient abandonment so long as the deceased remained 
 within French territory." From this it may be implied 
 that if she had actually left French territory there would 
 have been a sufficient abandonment of her former domicile, 
 so as, in conjunction with the animus which she enter- 
 tained, to constitute England her new, or rather re- 
 acquired domicile. The above point as to change of 
 domicile in transitu, however, would raise questions of 
 extreme difficulty, unless we determine at what distance 
 from a country's shore its territory ends for such a pur- 
 pose ; {a) and this, judging from the arguments in the 
 recent case of the captain of the ship Franconia, is a 
 highly intricate problem of international law. The act of 
 Madame Raffenel in going on board the steamboat was 
 not deemed sufficient to give effect to her undoubted in- 
 tention to resume her English domicile, and accordingly, 
 
 (a) A league has, however, heeu extended. See Kent's International 
 the limit from the shore to which Law, p. 116. 
 the territory of a state has hitherto 
 
OF PJEESONAL PROPEKTY. 251 
 
 the Court refused the motion to grant probate of her Will 
 made in France, the country of her actual domicile. 
 
 During the same session of Parliament as that in which Statute 23 & 
 the statute concerning the effect of domicile on the right 121. 
 to probate of the Wills of British subjects made in or out 
 of the United Kingdom was passed, another Act (b) came 
 into existence on another branch of the same subject. 
 It enacts that : — 
 
 " Whenever Her Majesty shall by convention with any British sub- 
 foreign state agree that provisions to the effect of the ibroa/aoquire 
 enactments herein contained shall be applicable to the a domicile in 
 
 T ^ . the country 
 
 subjects of Her Majesty and of such foreigu state respec- -wiiere they 
 tivelv, it shall be lawful for Her Majesty by any order in die, only after 
 
 •' ' _ _ J J J J residing there 
 
 council to direct, and it is hereby enacted that from and a year pre- 
 after the publication of such order in the London Gazette, ^eceLe" ^" 
 no British subject resident at the time of his or her death 
 in the foreign country named in such order shall be deemed 
 under any circumstances to have acquired a domicile in 
 such country, unless such British subject shall have been 
 resident in such country for one year immediately pre- 
 ceding his or her decease, and shall also have made and Deposit in a 
 
 n 'J.!* 1 •[• nti r t r • j. / i public office of 
 
 deposited m a public omce 01 such foreign country (such ^^^^^ country, 
 office to be named in the order in council), a declaration ^ declaration 
 
 ~i. , . . ^ ,..,,. in writing of 
 
 in writing 01 his or her intention to become domiciled m intention to 
 such foreign country ; and every British subject dying lieoome domi- 
 resident in such foreign country, but without having so Declaration 
 resided and made such declaration as aforesaid, shall be "^^f^^^ * year's 
 deemed for all purposes of testate or intestate succession not been 
 as to movables to retain the domicile he or she possessed "°™P'^*®d. 
 at the time of his or her going to reside in such foreign former'™ " 
 country as aforesaid." (Sect. 1.) domicile. 
 
 " After any such convention as aforesaid shall have been 
 entered into by Her Majesty with any foreign state, it 
 shall be lawful for Her Majesty by order in council to Subjects of 
 direct, and from and after the publication of such order in dying in 
 the London Gazette it shall be and is hereby enacted, that '^^^^^ Bntain, 
 (5) 23 & 24 Vict. c. 121. 
 
252 
 
 WILLS OF PEKSONAL PEOPERTY. 
 
 not deemed to 
 have acq^uired 
 a domicile 
 here, unless 
 they have 
 resided here 
 one year pre- 
 vious to their 
 
 and shall also 
 have de^sited 
 with the Home 
 
 declaration in 
 "Writing of 
 their desire to 
 become and be 
 domiciled in 
 this realm. 
 
 Concluding 
 remarks. 
 
 no subject of any such foreign country, who at the time of 
 his or her death shall be resident in any part of Great 
 Britain or Ireland shall be deemed under any circum- 
 stances to have acquired a domicile therein, unless such 
 foreign subject shall have been resident within Great 
 Britain or Ireland for one year immediately preceding his 
 or her decease, and shall also have signed and deposited 
 with Her Majesty's Secretary of State for the Home De- 
 partment, a declaration in writing of his desire to become 
 and be domiciled in England, Scotland, or Ireland ; and 
 that the law of the place of such domicile shall regulate 
 his or her movable succession " (sic). 
 
 Such is, a slight and introductory sketch of the law on 
 a subject of much importance, intricacy, and difficulty of 
 application ; and the reader is now in a position to push 
 his inquiries further, and to understand at least the terms 
 used in the cases which he may hereafter elsewhere peruse. 
 The two Acts of Parliament which we have set out at 
 length have, however, done much to rid the law of domi- 
 cile, in its relation to testamentary matters, of much that 
 was cumbersome and productive of unnecessary incon- 
 venience and hardship ; but notwithstanding this fact, the 
 subject is by no means even now divested of the per- 
 plexity which has always characterised it. Of course, 
 as we said before — quoting from Sir H. J. Fust in 
 Craigie v. Lewin — no matter what sets of circumstances 
 may arise, the principles of the law of domicile are the 
 same in their applicability to every one of them ; and the 
 elementary learning on those principles is all we have 
 attempted to place before the reader in the foregoing brief 
 outline. 
 
 We will now bring this chapter — for the extreme length 
 of which we have to apologise-^to a close, and proceed to 
 the consideration of the more immediate subject of the 
 present treatise — Wills and Testaments. 
 
CHAPTER III. 
 
 OF WILLS AND CODICILS. 
 
 Except where the nature of the provisions or context ^ ^'''• 
 of the Wills Act, 1838, excludes such construction, the 
 word " Will " shall extend to 
 
 1. A Testament. 
 
 2. A Codicil. 
 
 3. An appointment by Will ; (a) or, 
 
 4. By writing in the nature of a Will in exercise of 
 
 a power. 
 
 5. To a disposition by Will and testament or devise 
 
 of the custody and tuition of any child ; and 
 
 6. To any other testamentary disposition (a). 
 
 We have already spoken of a testament; let us now 
 examine the other significations of the word " Will " which 
 the above celebrated statute affixes to it. 
 
 A codicil, from codicillus, diminutive of codex, a book, ^ "odicU in 
 is in English law a supplement to a Will, having the 
 power, under various circumstances, of adding to, or sub- 
 tracting from, altering, explaining, confirming, re-execut- 
 ing or re-publishing, or reviving any Will with which 
 it can be identified and incorporated (b). A testator, ■*■ person can 
 
 . xTT-m leaTe only one 
 
 although he can make but one eiiective Will, yet may wffl, but any 
 make any number of codicils, each of which may in some "™^.'"^ °* 
 
 •^ -^ codicils 
 
 way or another have an operative power. But " it is a thereto, 
 settled rule with the courts whose province it is to adju- 
 dicate upon such questions never to disturb the disposi- 
 tions of the Will further than is absolutely necessary for 
 
 (a) 1 Vict. 0. 26, s. 1 ; and see P. 0. 427 ; In re EarVs Trusts, 4 
 
 the judgment of Lord "Westbury, K. & J. 673 ; In the goods of Te/r- 
 
 C, in. Thomas v. Jones, 1 De G. J. rMe, 1 Sw. & Tr. 140 ; In the goods 
 
 & S. 63 ; 32 L. J. Ch. 139. of Lady Truro ; L. R. 1 P. & D. 
 
 (J) 1 Vict. c. 26, s. 34 ; judg- 201 ; 35 L. J. P. & M. 89. 
 ment in Allen v. Maddock, 11 Moo. 
 
251 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Codicil in 
 Eoman law. 
 
 Two kinds. 
 
 Distinctions 
 between tes- 
 tament and 
 codicil. 
 
 Definition. 
 
 the purpose of giving effect to the codicils (c)." In the 
 great case of Ferraris v. Hertford [d), it appeared that 
 the testator, the Marquis of Hertford, had made thirty- 
 three codicils to his Will, and probate of thirty of them, 
 with the Will, was granted to his executors. 
 
 In the early Roman law codicils were unknown, nor 
 were they in use before the reign of Augustus Csesar (e) ; 
 and when codicils came to be employed legacies could not 
 be left by them unless they were afterwards confirmed 
 by testament. 
 
 By the Institutes of Justinian there might have 
 been any number of codicils without a testament, but 
 these, unless confirmed by testament, had not the 
 effect of bequeathing legacies but only of creating 
 trusts (e). The codicils could operate whether the 
 person making them died testate or intestate — that is, 
 with or without a testamentary heir ; or, in other words, 
 without a testament (/). Consequently, there were two 
 kinds of codicils — one, where a man left a testament and 
 codicils ; the other, where he simply left codicils. The 
 absence of a testamentary heir, — or as we say, an executor 
 — marked in the Roman Civil law the great difference 
 between a testament and a codicil ; indeed, the latter did 
 not admit an executor (g). A codicil might have been 
 made before, as well as after, a testament ; only five wit- 
 nesses were required to attest its execution whereas that 
 of a testament required seven; an inheritance could 
 neither be given nor taken away by it, except by means 
 of a trust Qi) — (fideicomissimi) (i). 
 
 From the circumstance of a codicil being an instrument 
 requiring a less degree of formality for its execution than 
 a testament, it has been defined by the civilians to be 
 
 (c) Jarm. Wills. 
 
 (d) Curt. Ecc. Eep. 477. 
 
 («) Just. Inst. 2, 25 Introd. 2, 
 25, 1 ; " Legata nisi ex testamento 
 non valeat." Inst. 2, 23, 10. 
 
 (/) Inst. 2, 25, 1. 
 
 (g) Swinb. 1, 5, 3 ; Off. Exor. 
 58 n. (6). 
 
 (h) Just. 2, 25, 2. 
 
 (i) Strictly a bequest in trust. 
 See Sand. Just. 23, n. 
 
OF WILLS AND CODICILS. 255 
 
 — TRtima, testati vel intestati voluntas minus solennis ; 
 the phrase mmus solennis denoting that the solemnity 
 of appointing an executor was dispensed with, as men- 
 tioned above. 
 
 In the Roman law, the codicil of an intestate was 
 carried into effect by his heir-at-law or next of kin. If 
 a man made a Will and codicil, the latter was dependent 
 for its validity upon that of the former ; if an intestate 
 made a codicil, the, instrument was deemed perfect in 
 itself, and spoke from the date of its execution, while in 
 the former case, it spoke from the date of the testament. 
 
 Our law concerning bequests of personal property is in Roman codicil 
 great part boiTowed from the Civil ; but it will be seen that tnV^Ji^h ' "^ 
 a codicil in the former system of jurisprudence is a dif- one. 
 ferent instrument from the one we have just described. As 
 to many of the features of a Roman codicil, or rather perhaps 
 as to the rules which governed them, it may be said that 
 an English codicil is almost of the opposite character ; for 
 instance, a Roman codicil has been correctly called " a last 
 Will, but not a Testament ;" at the same time, it resembled 
 in other of its features an English codicil, e.g., in the Roman 
 Civil law, a codicil made after a testament, was, as in our 
 own, deemed part of that Will (k). It is rather amusing 
 to observe the variety of ways in which a codicil has been 
 described (l) . Some writers have called a codicil little curious de- 
 Will, in contradistinction td a testament, which they termed soriptious of 
 
 ,,, , 1 , , 1 . codicils. 
 
 a great WiLL; some have compared a testament to a ship 
 and a codicil to its boat; others have termed it ''an un- 
 solemn last Will ; " and, in reference to the limited use of 
 codicils on their first introduction, one writer very 
 quaintly, but pertinently remarks — Nempe ut condimenti, 
 non ut cibi, fuit olim codicillorum usus. 
 
 In our law at the present day, a codicil is a testamentary Codicil in our 
 disposition subsequent to a Will, and, therefore, the exis- made after 
 
 will. 
 (h) Dig. 29, 7, 22 ; West. Symb. {I) See Swinburne's curious de- 
 
 636 ; Swinb. 1, 5, 11 ; 2 Black. scription in part 1. section 5, of his 
 Com. 500. work. 
 
256 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Bepublisliing a 
 will repub- 
 lishes the 
 codicils 
 thereto, and 
 ■vice versd. 
 
 Defizritiou of a 
 
 tence of a codicil, although it may sometimes by itself 
 operate as a distinct document, implies the previous 
 making of a WiU, upon which it is, primd facie, though 
 not necessarily dependent (m). 
 
 If a Will is republished — that is, since 1 Vict. c. 26, re- 
 executed — the codicils thereto are also re-executed (n) ; 
 and conversely a Will may be re-executed by a codicil, so 
 as to bring the date of the whole instrument down to that 
 of the codicil. 
 
 A codicil may also so re-execute a Will as to prevent a 
 gift under it from lapsing (o), where the case is within 
 section 33 of 1 Vict. c. 26, which enacts as follows : 
 " Where any person being a child or other issue of the 
 testator, to whom any real or personal estate shall be 
 devised or bequeathed for any estate or interest not 
 determinable at or before the death of such person, shall 
 die in the lifetime of the testator leaving issue, and any 
 such issue of such person shall be living at the time of the 
 death of the testator, such devise or bequest shall not 
 
 (ot) Ghimwood v. Cozens, 3 Sw. 
 & Tr. 364. See, however, the case 
 of Denny v. Barton, where a letter 
 was established as a codicil to a 
 ■WiU of a date subseq^uent to the 
 letter. 2 PhiU. 575. 
 
 (w) Ferraris v. Hertford, 3 Curt. 
 514, Judgment of Sir H. J. Fust. 
 But see this case on appeal, 4 Moo. 
 P. C. C. 366 ; a\soMarsh-7. Marsh, 
 1 Sw. & Tr. 528 ; 30 L. J. P. & M. 
 77 ; In the goods of Seid, 38 L. J. 
 P. & M. 1, Judgment. 
 
 (o) " If a legatee dies before the 
 testator, the legacy is a lost or 
 lapsed legacy, and shall sink into 
 the residuum [or what remains of a 
 testator's estate after payment of 
 his debts and legacies]. And if a 
 contingent legacy be left to any one, 
 as when he attains, or if he attains, 
 the age of twenty-one years, and he 
 dies before that time, it is a lapsed 
 
 legacy. But a legacy to one, to ie 
 paid when he attains the age of 
 twenty-one years, is a vested le- 
 gacy ; an interest which commences 
 in prcesenti, although it be solven- 
 dum in future ; and if the legatee 
 dies before that age, his representa- 
 tives shall receive it out of his 
 testator's personal estate, at the 
 same time that it would have be- 
 come payable, in case the legatee 
 had lived. This distinction is 
 borrowed from the Civil Law ; and 
 its adoption into our Courts is not 
 so. much owing to its intrinsic 
 equity, as to its having been adopted 
 by the [old] Ecclesiastical Courts," 
 2 Black. Comm. 513. This general 
 rule of testamentajy law is modified, 
 as we have seen, by the Wills Act, 
 1838, sect. 33, in favoijr of a 
 testator's children, under certain 
 circumstances. 
 
OF WILLS AND CODICILS. 257 
 
 lapse, but shall take effect as if the death of such person 
 
 had happened immediately after the death of the testator, 
 
 unless a contrary intention shall appear by the Will." 
 
 The following case will illustrate what we mean : — A Illustrative 
 
 testator, before the Wills Act, 1838, came into operation, 
 
 bequeathed a share of his residuary estate to one of his 
 
 sons. The son predeceased his father, but died after the 
 
 Wills Act came into operation, leaving issue. After his 
 
 death, the testator made a codicil confirming the existing 
 
 Will, and it was held that the gift to the dead son was 
 
 thereby prevented from lapsing, being within sect. 33 of 
 
 the Act above mentioned. It was also laid down that, 
 
 under sect. 34 of the same statute, the effect of the 
 
 repubhcation or re-execution of the codicil was the same 
 
 as if the testator had made another Will in the words of 
 
 the former one (p). 
 
 It can make no difference^so far as its validity is con- CodicU may be 
 ,..,,. . , on same or 
 
 earned — whether a codicil be written on the same paper with separate paper, 
 
 its Will, or whether it be written at a subsequent period or 
 
 not, so long as the codicil distinctly refers to the Will (q). 
 
 " You may incorporate an unexecuted paper into a duly Distinct 
 
 executed Will [or codicil], by a sufficiently clear and dis- ^n unexecuted 
 
 tinct reference to it, and with respect to which there can p^p^"^ ™'=™" 
 
 . T- -1 1 1 1 •!! porates it 
 
 be no mistake (r). And a codicil, duly executed, will into a Will, 
 give effect to unexecuted papers which have been wi'itten 
 between the periods of the execution of the Will and the 
 codicil, although the latter does not refer to the former (r). 
 
 H. made an informal codicil to his Will, and then made Informal 
 a second one duly executed, beginning with the words — ■ '""^^''^• 
 " This is another codicil to my Will." These codicils were 
 both admitted to probate, the learned Judge Ordinary, 
 Sir H. J. Fust, observing that although in reality there 
 was but one codicil, yet it was clear that the testator in- 
 tended the one unduly executed to be a codicil, a circum- 
 
 (p) Winter v. TTmfer, 5 Hare, Sm. 475. But see ^orf, p. 269. 
 306 ; 16 L. J. Ch. 111. (r) In the goods of Hunt, 2 
 
 (j) Aaron v. Aaron, 3 De G. & Eobert. Eoo. Rep. 622. 
 
258 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Where an in- 
 formal codicil 
 was not esta- 
 blished. 
 
 Reference to 
 a written 
 paper. 
 
 True effect of 
 codicil. 
 
 Burden of 
 proof when 
 Will is de- 
 stroyed and 
 codicil set up. 
 
 stance most material, although it was not made a ratio 
 decidendi (s). 
 
 In another case, A. made a valid "Will, and afterwards 
 made an informal codicil to it. He then made a second 
 codicil duly executed, but which did not mention the first 
 one. The same learned Judge held the first codicil not 
 established by the second, on the ground that the instru- 
 ment in question was not a codicil at all, and therefore 
 that the confirmation of the Will did not amount to a 
 confirmation of the informal codicil (t). The reason here 
 was that the testator having made no reference to the 
 first so-called codicil, it was to be inferred that he never 
 intended to recognise its provisions. 
 
 Where a testator, in a duly executed instrument, refers 
 to a paper already written, and describes it accurately and 
 unmistakably, such paper is, by the reference, incorporated 
 into his WiU, and parol evidence is admissible for the 
 purpose ; but where the reference is indistinct, such evi- 
 dence is not admissible (u). 
 
 The Court cannot, according to the authorities, give 
 greater or less effect to a codicil than this — to treat its 
 execution as if the testator had at the time sat down and 
 re-executed his Will. {Per Sir J. P. Wilde, In the goods 
 of Lady Truro, post, p. 265.) Where a Will and its 
 codicil have been in existence, and the Will has 
 been subsequently destroyed by the testator, the party 
 setting up the codicil must show that it was the intention 
 of the testator that such codicil should operate separately 
 from the Will (x). In the absence of this evidence the 
 presumption will be that by the destruction of the Will 
 the codicil was revoked, because the rule is that a codicil 
 is primd facie dependent on its Will (x). 
 
 (s) IngoldbyY. Ingoldby, 4K C. Tr. 364. See, however, Black v. 
 493. 
 
 {t) In the goods of Phelps, 6 N. C. 
 695. 
 
 (m) In the goods of Watkins, L. R. 
 1 P. &D. 19;35L. J. P. & M. 14. 
 
 (jr) Grimwood v. Cozens, 2 Sw. & 
 
 Jobling, L. R. 1 P. & D. 685 ; 38 
 L. J. P. & M. 74, where this case 
 and another were considered ; also, 
 In the goods of Savage, L. R. 2 P. 
 & D. 78 ; 39 L. J. P. & M. 25, 
 which affirmed the second of the 
 
OP WILLS AND CODICILS. 259 
 
 A codicil may, however, be substantially independent of CodicU may be 
 a Will which cannot be found, so far as its effect and title ^dependent of 
 to probate are concerned [y) ; and if a testamentary paper, 
 purporting to be a codicil, is seen to be of this character, it 
 is not necessarily revoked by the revocation or destruction 
 of the Will {z), the primd facie presumption of depend- 
 ence on the Will being in such cases rebuttable by evidence. 
 
 If a codicil be executed before the revocation of a Will, Codicil 
 and it be shown to be independent of the Will, the codicil before Will 
 may be admitted to probate (a). reToked. 
 
 " A codicil duly executed will give effect and operation Effect of 
 to a Will altered after the passing of the Wills Act, 1838, altered after 
 although the alteration was not duly attested, and though l^^^- 
 the Will itself was executed before 1838 (6), that is to say, 
 at the time when a bequest of personalty needed neither 
 signature nor attestation to secure its admission to 
 probate (c). 
 
 All Wills and codicils, whether of realty or personalty, ah -vi^iUg and 
 are now on the same footinar, so far as regards the formali- ™iii<='^ are 
 
 . , . now executed 
 
 ties to be observed m theu' due executwn, since, by the in the same 
 Wills Act, 1838, the word "Will" extends to a codicil ''^y- 
 (sect. 1). 
 
 From this statement it is to be inferred that like a Will Codicils to be 
 a codicil always requires due execution and attestation, require ■ 
 and that when there is an intention on the part of a tes- attestation. 
 tator to make a codicil, this can be effected only in the 
 way pointed out by the statute in regard to a Will (sect. 9). 
 A codicil, then, to have any force, must be signed by the 
 testator, and his signature attested by two witnesses. 
 
 above three cases. The correctness of supra; Inthe goods of Ellice, SSL. 
 
 these decisions is doubted in Wms. J. P. & M. 27. 
 Exors. pt. 1, bk. 2, ch. 3, sect. 1, (a) In the goods of Ewrris, S Sw. 
 
 p. 154. & Tr. 485 ; 3S L. J. P. & M. 181. 
 
 (y) In the goods of EalUmll, 4 (6) Skmner v. Ogle, 4 N. C. 78, 
 
 N. C. 400 ; 9 Jur. 1042 ; In the goods Judgment of Sir H. J. Fust. 
 ofOreig, L. R. 1 P. &D. 72 ; 35 L. (c) Ferraris v. Hertford, S Curt. 
 
 J. P. & M. 113. Ecc. Hep. 477, Judgment of the 
 
 (s) In the goods of Ealliwell, same learned judge. 
 
 s 2 
 
260 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Difference 
 between a 
 fully executed 
 and attested 
 codicil and 
 one not so. 
 
 Illustrative 
 ca^e. 
 
 Another case. 
 
 The difference between a codicil wliich is duly executed 
 and attested and one not so, is seen in the effect -which 
 the former may have upon other instruments themselves 
 imperfectly executed. The 'following case will illustrate 
 what is meant (d) : — In 1836, A. executed a WUl, and in 
 1838 he wrote a so-called codicil thereto which was signed 
 by him, but his signature (e) was not attested. In 1840 he 
 made a further real codicil, which was signed by him at the 
 foot, and duly attested. This was written on the second 
 side of the sheet on which the former incomplete paper 
 was written, and the deceased described it as " a second 
 codicil to my last WUl and testament," and Sir H. J. 
 Fust held that the second instrument having been duly 
 executed, and referring to the former, constituted an 
 execution (/) of the first one also. Accordingly, probate 
 of the Will and both codicils was ordered to pass. 
 
 Here is another case in point : — A., by her Will, directed 
 her executors to distribute certain articles according to 
 any list or lists of them which she might sign. She 
 then wrote a so-called codicil, and afterwards a list of the 
 things which she wished to be given by her executors, but 
 the paper in question was unattested. She next executed 
 a second codicil, but neither in this nor in the former was 
 any reference made to the inventory ; nevertheless the 
 document was held entitled to probate (g). 
 
 (d) In the goods of Smith, 2 Curt. 
 796. Note. — Strictly speaking, 
 the term " codicil " is not now, as 
 before the Wills Act, 1838, applic- 
 able to an unattested paper. See 
 Ferraris v. Hertford, ante, u. (c), In 
 the goods of PMps, 6 N. C. 695. 
 
 (e) When we speak of attesting a 
 Will, it is to be remembered that 
 we reaUy mean attesting the tes- 
 tator's signature. The statute of 
 1838 only requires the latter to be 
 attested, although the words em- 
 ployed therein are— "shall attest 
 and subscribe the Will." See Ilott 
 
 r. Oenge, 3 Curt. 175, Judgment of 
 Sir H. J. Fust, quoting Jarman on 
 Wills. See, also, this case affirmed 
 by the Privy Council in 4 Moo. 
 P. C. C. 265, and read Doe v. 
 Burdett, 10 C. & F. H. L. Cas. 340. 
 
 (/) The term "execution," as 
 appMed to the act of completing a 
 Will, though in strictness it means 
 only the signing by the testator, 
 yet in ordinary parlance compre- 
 hends the signing thereof by the 
 testator and the attestation of his 
 signature. 
 
 [g) fn the goods of Stewart, 3 
 
OF WILLS AND CODICILS. 261 
 
 We perceive here that a list had' been mentioned Euleasto 
 by the testatrix in her Will, which was a perfect instru- referring in a 
 ment, and the " authorities have established, that if the <!% executed 
 testator, in a Will or codicil, or other testamentary paper, not executed, 
 duly executed, refers to an existing unattested Will or 
 other paper, the instrument so referred to becomes part 
 of the Will "(/i). 
 
 It appears as a matter of fact from the case last cited, Eemarks on 
 that the list was in existence before the execution of the gjtg^^ 
 second codicil, if not before that of the Will which referred 
 to it. If the paper had been proved to have been drawn up 
 after the second codicil was executed, the Court could not 
 possibly have incorporated it in the Will, and Sir C. Cress- 
 well stated in his judgment, that but for the previous 
 decision of Sir John Dodson, he would not have granted 
 probate of the list. The language of the Will itself is 
 ambiguous as to whether the list was then actually in 
 existence, or whether it was subsequently to be made by 
 the testatrix. Of course, if the second codicil had referred 
 to the paper, no doubt could have arisen, but as we have 
 seen, neither of the codicils mentioned it, hence the 
 diflSculty. It is also to be remarked, in order that the The efficacy of 
 preceding observations may be the more intelligible, that testaa^ntary 
 to enable the efficacy of a valid testamentary paper to be mstrvmient 
 communicated to an invalid one, it is necessary that the municated 
 perfect document be one made subsequently to the other, ^^^^ ouT*^ 
 and those cases which appear to decide otherwise are not 
 to be considered as authorities for the contravention of 
 this general rule. (See post, p. 268.) 
 
 In the goods of Hunt, just referred to, the testator, by In the goods 
 his Will, bequeathed certain articles of plate, specified in "•' "" ' 
 schedules A. and B., which were to be annexed to that 
 document. He then executed a codicil, in which no 
 reference was made to these lists, but after his death two 
 
 Sw. & Tr. 192 ; 32 L. J. P. & M. 2 Robert. Ecc. Hep. 622. 
 94. The decision in this case pro- (h) 1 "Wms. Exors., pt. 1, bk. 2, 
 
 ceeded wliolly upon that of Sir eh. 2, sect. 2, 97 ; and the cases 
 
 John Dodson, In the goods of Bimt, there cited, note (J). 
 
362 
 
 WILLS OF PBESONAL PROPEETY. 
 
 Bemarka on 
 the atove case. 
 
 Observations 
 on the cases 
 cited. 
 
 Effect of duly 
 executed 
 codicil whicli 
 makes no 
 reference to , 
 invalid papers 
 made between 
 its own date 
 and that of 
 the Will. 
 
 Bcliedules, marked A. and B., were found. These, however, 
 were not in existence at the time of the execution of 
 the Will, but were before that of the codicil, yet Sir John 
 Dodson granted probate of all the papers mentioned. 
 Here, again, the duly executed Will had made reference to 
 schedules, which it stated were to be annexed thereto, and 
 when this matter is considered by the light of these two 
 singular decisions, there would seem to be no material 
 difference, whether the schedules were then in existence, 
 or were to be subsequently made by the testator ! By a 
 parity of reasoning also, if lie inventories had been made 
 even after the codicil, they might still have been admitted 
 to probate, although the codicil said nothing whatever 
 about them ; they depended upon the Will for any validity 
 they might possess, and although this instrument referred 
 to them as future documents, yet there was a distinct 
 reference made, and they were actually in existence at the 
 time of the testator's death. (But see post, pp. 264, 267, 268.) 
 It must be confessed that decisions like those in The 
 goods of Hunt and in The goods of Stewart, are calcu- 
 lated to cause confusion, and the reader must not conclude 
 that our present observations on these cases furnish the 
 correct mode — assuming that there is one — of accounting 
 for their existence. What has just been said is thrown out 
 merely as indicating a plausible way of reconciling them 
 with the true general principle. The more authoritative 
 ground for them appears to be this, that a duly executed 
 codicil made after a Will, has the force of giving validity 
 " to unexecuted papers which have been written between 
 the periods of the execution of the Will and codicil, although 
 the latter does not refer to the former " (i). The Will and 
 last codicil, if the latter be duly executed, form in fact, if 
 the expression be allowed, the two ends of a net within 
 which may be enclosed schedules, memoranda, and other 
 informal testamentary papers, to all of which validity may 
 
 (i) 1 Wms. Exors. pt. 1, bk. 2, p. 266, and tlie text, 
 ch. 4, sect. 2, 223. But see note (q). 
 
OF WILLS AKD CODICILS. 263 
 
 be given by being so enclosed. Both in Hunt and in 
 Stewart's case, the unattested schedules were succeeded 
 by the necessary codicil, which although it did not refer 
 to those documents in any way, yet formed the last link 
 in the testamentary chain, or to use our other simile, the 
 end of the testamentary net, which was held to encom- 
 pass the lists of things intended by the respective tes- 
 tators to be disposed of. It is, however, possible that even 
 where this last codicil does exist, unattested memoranda, 
 &c., will be discarded by reason of the peculiar wording 
 of the Will itself alluding to them. 
 
 The following case will show how such a result may Case where a 
 happen : — H. L. in 1855, executed a Will, in which she affirm infer- 
 gave personal property to legatees " in the confidence that mediate 
 they will distribute it as I may by memorandum or deed, 
 or otherwise, direct." She subsequently executed two 
 codicils, whereby she revoked certain legacies, and con- 
 firmed her Will in all other respects. At her death, 
 about twenty memoranda, containing directions as to the 
 distribution of part of her personalty, were found. These 
 had been written between the dates of the Will and first 
 codicil, and accordingly, the second codicil completed the 
 chain of papers iust as before. The memoranda were held ■*■ testator 
 
 ■*■■*■ . . stating m ms 
 
 by Sir C. Cresswell clearly not admissible to probate, on Will that he 
 the ground that a testator by announcing in his Will his ^^orporate 
 intention to make certain papers part thereof, cannot subsequent 
 efifectuate such intention unless the papers are duly therein, 
 attested (Ic). In this case, there was no doubt whatever 
 as to whether the documents to be incorporated existed 
 or not, because the testatrix had used the expression " as 
 I Tnay by deed, &c., direct," so that, to put the matter 
 shortly, had effect been given to these papers, the tes- 
 tatrix would really have died with so many distinct Wills, 
 
 (Jc) In the goods of Lancaster, 29 goods of Hunt, and In the goods of 
 
 L. J. P- & M. 155. The counsel Eakewell, 1 Deane & Sw. 14, in 
 
 who moved for probate of the me- support of his application, 
 moranda in this case, cited In the 
 
264 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Doubtful 
 character of 
 the eases cited 
 of Hunt and 
 Stewart. 
 
 In the goods of 
 Mathias. 
 
 True principle 
 to be foUffwed 
 in this" class of 
 cases. 
 
 and, as we have before stated, this is contrary to law,_and 
 also obviously to common sense. 
 
 In the case of In the goods of Stewart, decided on the 
 17th of March, 1863, Sir C. Cresswell decided that In the 
 goods of Hunt was one upon which he ought to act, 
 although against his own judgment. On June the 2nd in 
 the same year, the same learned judge had before him 
 another case, similar in principle to this, in which he 
 expressed his disapproval of both of the above decisions. 
 The facts in the latter were shortly as follows : — One, 
 Miss Mathias, executed a WiU in 1848 ; in 1853 she exe- 
 cuted a codicil to it, and in 1863 made a second codicil, 
 both of which were written on the same sheet of paper as 
 her Will. The Will contained the following clause : " I 
 request my trinkets may be divided as I shall direct in a 
 small memorandum." After her death a paper was found 
 purporting to be the document in question, and it gave 
 directions as to certain trinkets, but it was unattested, and 
 was not alluded to by the codicils. Motion was made for 
 probate of the Will, codicils, and this memorandum, and 
 as in the other previous cases. In the goods of Hunt was 
 cited in support of the application. The memorandum 
 was shown to have been in existence before the execution 
 of the second codicil, but Sir C. Cresswell doubted whether 
 as it was not referred to by that paper, it was entitled to 
 probate. The codicil no doubt confirmed the Will, but 
 the memorandum formed no part of the Will. Having so 
 expressed himself, the learned judge declared his dissatis- 
 faction with In the goods of Hunt, and declined to grant 
 probate of the memorandum (l). This case takes us back 
 to the true principle to be observed under all sets of cir- 
 cumstances similar to those we have been dealing with, 
 and which were well and correctly enunciated by Sir 
 
 (U) In the goods of Mathias, 3 
 Sw. & Tr. 100 ; 32 L. J. P. & M. 
 115. The reader is recommended 
 to peruse with, this case that of In 
 
 tJie goods of Eeid, 38 L. J. P. & M. 
 1, where Sir J. P. WUde explains 
 the law with great clearness. 
 
OF WILLS AND CODICILS, 265 
 
 Cresswell Cresswell himself in 1862, in Van Straubenzee Van strau- 
 V. Monck (m). That principle is, that in order that a tes- Mmck!' 
 tamentary paper duly executed may incorporate another, 
 it must refer to it as a written document then existing, Document to 
 in such terms that it may be ascertained. The identity mud°eSsT*^ 
 may be discovered by the aid of evidence of the sur- ns identity 
 rounding facts, and this evidence may be by parol (w), liow^oer- 
 provided the Will speaks of the docximent as then in 
 existence (o). Such evidence is not admissible for the ^^^°} evidence 
 
 / . . admissible 
 
 purpose of mcorporatmg unexecuted papers in one duly only when 
 executed, unless the latter refers to the former as then in ^adTinV^ 
 existence, and also describes it in such a manner that the valid paper to 
 
 /-N j_ ■ T 1 i. J. • -x -J i.-i / \ another wElcli 
 
 Court IS able to ascertain its identity [p). actually exists. 
 
 There are two cases which, considered together, and In tU goods of 
 with the extract from Williams on Executors, given at ■^"'^^ ^furo. 
 p. 261, will help to throw considerable light on the sub- 
 ject now under our notice, and we will state each in a 
 general form. The first is as follows : — A. duly exe- 
 cuted a Will in 1865. In this she left to B. "all such 
 articles of silver plate and plated articles as are contained 
 in an inventory signed by me, and deposited herewith." Deposit of 
 Six days after the execution of her Will, she deposited things with 
 her Will at her bankers, together with a document, con- ' 
 sisting of two sheets of paper, containing a list of plate. 
 This was headed " List of plate and plated articles left in , 
 my Will, &c.," and was signed and dated by the testatrix. 
 In October of the same year, the deceased executed a Codica to such 
 codicil to the Will, dated the 15th September, the day of 
 
 Will. 
 
 (m) 3 Sw. & Tr. 6 ; 32 L. J. perty other than that provided by 
 
 P. & M. 21. the terms of the "WiU. Sir J. P. 
 
 (m) Allen v. MaddooTc, 11 Moo. Wilde, J. 0. (Lord Penzance), in his 
 
 P. C. C. 427 ; see, also, In the Judgment in this case, cites Allen 
 
 goods of Brevns, 3 Sw. & Tr. 473 ; v. MaddocTc and Van Straubenzee v. 
 
 33 L. J. P. & M. 124. Monde, as enunciating the correct 
 
 (o) In the goods of Sunderland, rule to be followed in similar cases. 
 L. E. 1 P. & D. 198 ; 35 L. J. P. & {p) In the goods of WatUns, L. 
 
 M. 82, another case of a contem- E. 1 P. & D. 19 ; 35 L. J. P. & M. 
 
 plated subsequent disposal of pro- 14. 
 
266 
 
 WILLS OP PBESONAL PROPERTY. 
 
 List not seen 
 by the wit- 
 nessees of the 
 Will. 
 
 Conference by 
 the testatrix 
 ■with one of 
 the mtnesses 
 before execut- 
 ■ ing the WiU, 
 as to the 
 inventory. 
 
 Question for 
 the Court in 
 this case. 
 
 Judgment. 
 
 General effect 
 of a codicU is 
 to make Will 
 speak as if 
 executed at 
 the date of the 
 codicil. 
 
 Different effect 
 in such a case 
 ■where no 
 codicU is 
 made. 
 
 Where 
 codicil not 
 alone sufficient 
 to incorporate 
 unexecuted 
 papers. 
 
 depositing the Will and inventory of plate ■with the 
 bankers, but this codicil did not in direct terms confirm 
 the WiU. The witnesses to the latter paper stated by 
 affidavit that at the time of its execution, no other paper 
 than the Will was produced to them by the testatrix, and 
 they were unable of their own knowledge to state what 
 document was referred to in the Will. One of the wit- 
 nesses, however, stated in his affidavit, that immediately 
 before the Will was executed, the testatrix conferred with 
 him on the subject of the inventory, and he pointed out to 
 her the importance of signing that paper, and depositing 
 it with her Will ; also that the testatrix intimated to him 
 her intention of complying with his suggestion. No list 
 was found answering the description in the Will other 
 than the one referred to. The question for the Court of 
 Probate on these facts was, whether this inventory could 
 be admitted to probate as being incorporated with the 
 Will. Sir J. P. Wilde, J. 0., in the course of a very 
 cautious and guarded judgment, decided that the paper 
 was entitled to probate on the ground that as a codicil to 
 a Will has the effect of re-executing it, and making it 
 speak as if executed on the date of the codicil, the Will 
 was to be read as if then executed ; and, moreover, as the 
 paper was at that time in existence and signed by the 
 testatrix, it would form part of her Will, and therefore 
 capable of receiving probate. The learned judge admitted 
 that, but for the fact of the execution of the subsequent 
 codicil, he should have had serious doubts on the subject. 
 He also stated that "the mere fact of unexecuted papers 
 having been written or signed between the date of the 
 Will and that of the codicil will not suffice to add such 
 papers to the Will by the force of re-execution, or to 
 make that testamentary which would not have been so 
 if the Will had been originally executed at the latter 
 date " {q). 
 
 (5) In the goods of La3y Trwo, 
 L. E. 1 P. & D. 201 ; 35 L. J. P. & 
 
 M. 89. Compare note (i), p. 262, 
 and the text referred to. 
 
OF WILLS AND CODICILS. 267 
 
 The second case to which we now direct attention is in the goods of 
 that of In the goods of Eeid (r), already alluded to, , and ^^' 
 the material facts there were these : — M. R. duly executed 
 a WiU on the 24th of May, 1864, and it was shown that 
 in 1866 a codicil thereto, was also duly executed. By her 
 Will she appointed G. and L. her residuary legatees, and 
 stated that she gave sums of money to certain friends 
 " to be named in a letter addressed to '* the above men- Language 
 tioned G. and L. In disposing of some sheep in Australia, ?°^*™^ !° * 
 she divided the flock into four parts, three of which she 
 specifically bequeathed, and then continued, "the other 
 portion to be given to my residuary legatees, to be appro- 
 priated by them as specified iii my letter. The codicil Codicil, 
 was to the effect that certain deaths having occurred in 
 the family of the testatrix, she wished to alter the dis- 
 position of her Will so far as concerned some articles of 
 jewellery, and the paper concluded with the words : " I 
 now leave them as intimated in the letter addressed to 
 my residuary legatees." After the death of the testatrix, 
 the Will and codicil were found together with two un- 
 executed testamentary papers. No. 1 bore date March 1, 
 1866, and was the letter referred to as addressed to her 
 residuary legatee ; No. 2 simply expressed a wish as to a 
 fourth part of the flock of sheep just mentioned, and both of 
 these papers were in the handwriting of the deceased. 
 Probate of the Will, codicil, and the two unexecuted Probate of the 
 papers having been moved for. Sir J. P. Wilde, J. 0., papers refused. 
 declined to grant it of the two latter documents, mainly Ground of the 
 on the ground that the Will in this case did not refer to a ^"^^™- 
 paper previously in existence. 
 
 The reader will observe that here, just as in Lady 
 Truro's case, a codicil, duly executed too, succeeded the 
 Will, but as Sir J. P. Wilde pointed out, the language of 
 the Will as to the list was of a future character. At any Character of 
 rate, if this was not the nature of the phraseology, it was ^^^fi^! 
 
 ous. 
 {r) 38 L. J. P. & M. 1. 
 
26S 
 
 WILLS OF PERSONAL PROPERTY. 
 
 No existimg 
 document 
 referred to. 
 
 Beid's case 
 compared with 
 Lady Truro's. 
 
 Wly codicil 
 had force in 
 the one case 
 and not in the 
 other. 
 
 Subject Bum- 
 med up. 
 
 Present rule 
 in cases 
 similar to the 
 foregoing. 
 
 Principle of 
 Allen T. 
 MaddocK 
 
 ambiguous, for the terms xxsed as to the letter might have 
 pointed either to a paper actually in existence, or one to 
 be called into existence. This being so, there was not on 
 the face of the Will or codicil, any distinct reference to an 
 existing document, and still less to show that these docu- 
 ments existed at the time of the execution of the Will and 
 codicil. Between this case and that of Lady Truro's, it 
 may be thought that there exists no very material dif- 
 ference in principle, but it is seen that the language of 
 Lady Truro's Will pointed to an inventory actually 
 existing and signed, ready in fact to be deposited some- 
 where together with the Will, immediately after the 
 execution of the latter, and as a matter of fact was so 
 deposited six days afterwards. In such a case, if the WiU 
 had stood alone, the list would, like those of Mrs. Reid, 
 have been rejected from probate, but the subsequent 
 codicil preserved it. In Mrs. Reid's case, her codicil was 
 of no avail, because the language of her Will was such 
 that it might have referred to a list either in esse or in 
 posse. All that has now been said on this subject, may 
 be summed up in the words of Sir J. P. Wilde in his 
 judgment In the goods of Lady Truro, and what is stated 
 by that learned judge may be taken as embodying the 
 true rule at present observed in cases similar to those we 
 have been discussing. He says, " When the Will, if 
 treated as executed at the date of the codicil, and read as 
 speaking at that date, contains language which, within 
 the principle of A lien v. Maddock (s), would operate as 
 an incorporation of the document to which it refers, tes- 
 tamentary effect may be given to such document. But 
 when this is not the case, the mere fact of unexecuted 
 papers having been written or signed between the date of 
 
 (s) 11 Moo. P. C. C. 427. The 
 principle enunciated in this case 
 was, that where there is a reference 
 in a duly executed testamentary 
 instrument to a paper, by such 
 terms as to make it capable of iden- 
 
 tification, it is a subject for parol 
 evidence, and by such evidence, it 
 may be incorporated with the valid 
 instrument referring to it, and so 
 form part thereof. See also Dickin- 
 son V. Stidolph, 11 0. B. N". S. 341. 
 
OP WILLS AND CODICILS. 269 
 
 the Will and that of the codicil will not suffice to add such 
 papers to the Will by the force of republication [i.e., by 
 re-executing the Will or by executing a codicil to it], or 
 to make that testamentary which would not have been 
 so if the Will had been originally executed at the latter 
 date." 
 
 The subject which has just been dealt with being one Preceding 
 of some difficulty we have considered it at length, and obseryationa 
 before we dismiss it, one observation should be made, only in con- 
 namely, that what has heretofore been said as to the the'wiUB^ot 
 operation of a complete codicil upon previous unattested 1838. 
 papers must be read only in connection with the law 
 created by the Statute 1 Vict. c. 26. Why this is so will 
 be explained further on in the chapter, "A Will of 
 Personalty before 1838," and here no more than an 
 intimation of the fact itself need be given. 
 
 A Will and codicil or codicils were in the Civil Law, -vrill and 
 and have always in that of England, been regarded as codicil md,ke 
 together constituting an entire Will (s), in fact, every codicil 
 is a part of the testamentary disposition though not neces' codicii is not 
 sarily of the instrwment itself (t). For this reason, it will necessarily 
 1 !• -I • • V 1 1 T -1 part of the 
 
 be found on examining some of the cases, that a codicil instrument, 
 
 written on the same paper with a Will, is regarded some- t^*amentew 
 what differently from one which forms a separate docu- disposition. 
 ment. Of course a codicil may be made in either way, 
 and, like a Will, on any substance, or in any language, or 
 in cypher, and may be written with, or altered by, ink or 
 pencil (u) ; but where the two writings are both on the How codicil 
 same paper it is obvious that this circumstance will same paper 
 materially lessen the difficulty of settling the points — should ^i*'' ''^iii; 
 
 (s) See Lord Hardwick's Judg- Exorg., pt. 1, bk. 2, ck 2, sect. 5 ; 
 
 ment in Willett v. Samdford. 1 Ves. Greville v. TyUe, 1 Moo. P. C. C. 
 
 187. See also, HalergJiam v. Vifi- 320 ; Sast y. Twyford, i H. L. 
 
 cent, 2 Ves. Jun. 228 ; but espe- Cas. 517 ; £ateman v. Pennington, 
 
 daily LeTnage t. Goodban, L. K. 1 3 Moo. P. C. 0. 227 ; In the goods 
 
 P. & D. 57 ; 36 L. J. P. & M. 28. of Hall, L. E. 2 P. & D. 256 ; 40 
 
 (t) Sherer v. Bishop, i Bro. C. L. J. P. & M. 37 ; In the goods of 
 
 C. 65 ; Judgt. Adams, L. R. 2 P. & D. 367 ; 41 
 
 (m) On these points, see 1 Wms. L. J. P. & M. 31. 
 
270 
 
 WILLS OF PEESONAL PROPERTY. 
 
 Codioils do 
 not require 
 an executor, 
 but are not by 
 the appoint- 
 ment of one 
 rendered 
 invalid. 
 
 Executors in a 
 Will and after- 
 •wards "sole 
 executor " 
 named in a 
 codicil. 
 
 Eule as to 
 where execu- 
 tors in a 
 Will are 
 superseded by 
 those of the 
 codicil. 
 
 they arise — concerning reference to, and identity of the 
 other instrument. Accordingly, where a Will and codicil are 
 found wiitten on the same paper, the evidence necessary 
 to prove the reference and identity of the dispositions to 
 and with each other, is not required to be so full or precise 
 as when the testamentary dispositions are found existing as 
 separate documents (x). 
 
 " Codicils were never thought to require the appoint- 
 ment of a new executor to carry them into execution ; 
 nor, on the other hand, is it any objection to them or to 
 the "Will, if they contain such nomination " (y). This is so 
 at the present day, so far as regards the testamentary 
 validity of these instruments ; but if a question arises as 
 to who shall take the grant of probate of' them; the 
 appointment of executors or executor in a codicil different 
 from those in the Will may, Under certain circumstances, 
 considerably influence the decision of the Court. ' Thus, 
 where A. made his Will in 1860, nominating C. and D., 
 the executors thereof, and in 1864 duly made a codicil 
 appointing his wife his " sole executrix," this was held to 
 be a revocation of the former appointment, and probate was 
 ordered to pass to the widow, the Court relying on the 
 expression " sole executrix " as indicating the testator's 
 intention to substitute her for the executors previously 
 named («). 
 
 Unless, however, there is something on the face of the 
 subsequent paper to denote an intention of the testator to 
 revoke the former appointment of executors, or from 
 which an inference may be reasonably drawn to the same 
 
 (a;) In the goods of Terrible, 1 Sw. 
 & Tr. 140 ; and see Allen v. Mad- 
 dock, 11 Moo. P. C. C. 427 ; Judgt. 
 
 (y) 2 Woodd. Vin. Lect. 471. 
 (1792.) 
 
 (a) In the goods of Lowe, 3 Sw. & 
 Tr. 478; 33 L. J. P. & M. 155, 
 followed In the goods of ^ Bailey, 
 L. R. 1 P. & D. 628. In this case, 
 
 a Will nominated A. & B. exe- 
 cutors ; a second paper named A. 
 and C. "sole executors." Probate 
 was granted to the latter, the Court 
 excluding B., relying, as before, on 
 the word " sole " as indicating the 
 testator's intention to revoke B.'a 
 appointment. 
 
OF WILLS AND CODICILS. 271 
 
 effect, the Court, it appears, will grant probate of the paper 
 to the second set of executors, reserving leave to the first 
 set to also come in and take probate. This was so held in In the goods of 
 a case decided in 1862 by Sir C. Cresswell (a). There a ^''''' 
 testator in 1859 duly made a Will, appointing A., B. and 
 0. executors of it, and in 1860 he executed another paper, 
 appointing A. and D. executors. It was argued that by 
 the re-appointment of A. and the appointment of a 
 new executor in the second paper, the appointment of 
 executors in the first was revoked. Sir C. Cresswell, how- 
 ever, held otherwise, and stated that he had " looked in 
 vain for any warrant for the proposition" conliained in 
 the argument. 
 
 Testaments were formerly of two kinds, written and Wills formerly 
 nuncupative ; the latter being a verbal declaration by a °* ^'^° ^™'^^' 
 testator of his Will before a sufficient number of wit- 
 nesses (&), three or four. Since the Wills Act, 1838, all 
 nuncupative Wills are declared void, except those of 
 soldiers, sailors, and marines on actual service (c), who 
 are enabled when so engaged, to dispose of their personal 
 property in the same manner as they might have done 
 prior to the Wills Act, 1838 (c). Before that year, ordi- 
 nary nuncupative Wills were governed by the Statute of 
 Frauds (d), by which they were held within strict bounds ; 
 but the Wills of soldiers and seamen were exempted from 
 its operation, the 23rd sect, of the latter declaring that 
 they should remain on the same footing as before it was 
 passed. Swinburne thus tells us how Wills of this kind 
 were made : — " In the making of a nuncupative Will or Ntmcupative 
 testament this is chiefly to be observed, that the testator ^'■^• 
 do name his executor, and declare his mind by words of 
 mouth, without writing, before witnesses. As for any pi-e- 
 cise form of words none is required, neither is it material 
 
 (a) In the goods of Leese, 2 Sw. & Vict. c. 72 ; Drwimamd t. Farkh, 
 
 Tr. 442 ; 31 L. J. P. & M. 169. 3 Curt. 522. 
 
 (5) Swint. 58. (d) 29 Car. 2, o. 3, S3. 8, 19, 20, 
 
 (c) 1 Viot. c. 26, s. 11 ; 28 & 29 21, 22, 23. 
 
272 
 
 WILLS OP PEESONAL PEOPEETY. 
 
 CadJcil. 
 
 whether the testator do speak properly or improperly, so 
 that his meaning do appear " (e). The Statute of Frauds 
 requires at least three witnesses to a nuncupative Will, 
 where the estate bequeathed exceeds the value of £80. 
 The testator is obliged to tell these witnesses that what 
 he sajs, is intended to be the testamentaiy disposition of 
 his property. The Will must be in his last sickness, and be 
 made where the testator has resided for at least ten days 
 previously, unless the illness has come on suddenly and the 
 person dies before he can return home. The words spoken 
 must be put into writing within six months after their utter- 
 ance. Probate of a nuncupative Will is only to be obtained 
 after fourteen days from the testator's death, and no such 
 Will can revoke or alter in any way a written one(f). 
 
 A nuncupative codicil having formerly been available 
 to give the undisposed residue of a testator's effects (g), 
 a soldier or sailor on active service may employ such 
 means for such a purpose. Any unattested writing, as a 
 letter, may also operate as the Will of a soldier on an 
 expedition or of a sailor at sea (h). 
 
 Sailors and marines, however, even at sea, cannot make 
 verbal Wills for all purposes ; for instance, if they wish to 
 bequeath their pay or prize money, they must do so in 
 writing (i). , 
 
 Actual Bervice, As the right of a soldier or sailor to make a nuncupa- 
 tive Will, or an informal one in writing, depends on his 
 being on actual service — for the privilege is not allowed 
 even in barracks — we may now inquire what the law 
 deems actual service to signify. The first important 
 case on this subject since the Wills Act, 1838, was that of 
 Drummond v. Parish, decided in the Prerogative Court of 
 Canterbury, by Sir Herbert Jenner Fust, May 10th, 184!3 (/c). 
 
 Eestriotion as 
 to pay and 
 prize money. 
 
 The leading 
 case of Drum,' 
 Tiwnd y. 
 Parish. 
 
 (e) Pt. i, sect. 26, 1. 
 
 (/) See 29 Car. 2, c. 3, ss. 19, 
 20, 21, 22. And see more on this 
 subject j)os<, in the Chapter on the 
 Jurisdiction of the Probate Division 
 of the High Court of Justice. 
 
 {g) Com. Dig. Devise (C). 
 {h) Wms. P. P. 297. 
 (i) 28 & 29 Vict. c. 72. 
 (k) Drummond v. Parish, 3 Curt. 
 522. 
 
OF WILLS AND CODICILS. 
 
 273 
 
 Iq that learned Judge's elaborate judgment on the equally 
 elaborate argument addressed to him by counsel, we have 
 so masterly an investigation of the law on this subject as 
 to invest an apparently unimportant and dry matter with 
 much interest. The decision arrived at by Sir H. J. Fust 
 was that actual service meant in the case of a soldier, being 
 on an expedition, and in that of a sailor being at sea. 
 The present leaning of the Probate Division of the 
 H. C J. is towards dealing liberally with nuncupative and 
 informal Wills of soldiers and sailors on active service, as 
 the following case indicates : — A surgeon in the Royal 
 Navy was invalided at a foreigit station, and when at sea, 
 wrote to his brother a letter containing directions as to 
 the manner in which he wished his property to be dis- 
 posed of, &c. : Held, (1) that the authority of previous 
 cases decided that, a surgeon in the navy is a mariner or 
 seaman within the provisions of the Statute of Frauds, 
 and those of the Wills Act 1838, exempting mariners and 
 seamen from making formal Wills. (2) That although 
 he was not on duty at the time, yet as he was returning 
 from service invalided, his Will was entitled to probate, as 
 made at sea (T). It was held also that the term soldier, 
 mariner, or seaman generally includes all members of the 
 whole profession respectively indicated. 
 
 In a later case (m), it was declared that even a minor, 
 making his Will on board a ship lying in harbour, is 
 within the 11th section of the Statiite of 1838, and this 
 case was decided on the authority of Tn the goods of 
 Lay (n). The principle of each is, that " although a sea- 
 man may not be out of his own country, yet he may be 
 subject to the restraints of the service ; and not being 
 able to go on shore to obtain legal assistance, he may find 
 some difficulty in properly executing his Will." But the 
 
 Leaning of 
 the Court of 
 Probate. 
 
 Illustrative 
 case. 
 
 Term soldier 
 or sailor 
 indicates 
 every member 
 of the respec- 
 tive services. 
 
 Nuncupative 
 or informal 
 Will of a 
 
 Principle as to 
 the Wills of 
 
 (Z) In the goods of Saimders, L. E. 1 P. & D. 540 ; 37 L. J. P. & 
 
 E. 1 P. & D. 16 ; 35 L. J. P. & M. M. 14. 
 26. (re) 2 Curt. 375. 
 
 (to) In the goods of M'Murdo, L. 
 
 T 
 
274 
 
 WILLS OP PEESOKAL PROPERTY. 
 
 A mariner 
 on shore or a 
 soldier in 
 barracks is not 
 on actual 
 service. 
 
 DrummoTid v. 
 Parish defines 
 "actual ser- 
 ■vice " to mean 
 being on an 
 expedition. 
 
 Principle 
 adopted from 
 the civil law. 
 
 DvummoThd v. 
 Parish. 
 
 In ihi goods of 
 Thorrte. 
 
 Will of a mariner on shore, or a soldier in barracks, is not 
 within the exception of sect. 11 of 1 Vict. c. 26 ; nor 
 is it enough that the testator is a soldier, sailor, or 
 marine (o), he must be on an expedition or on actual 
 service. The case of Drummond v. Parish ( p), which is 
 the great authority on this subject, first defined what the 
 words "actual service " mean, and Sir H. J. Fust, observ- 
 ing that the principle of the section of the Wills Act, now 
 being considered, was adopted from the Roman Civil law, 
 was of opinion that " actual military service '' means being 
 on an expedition. The facts in Drummond v. Parish were 
 shortly these : — General Drummond, Director-General of 
 the Royal Artillery, and an officer on full pay, died at 
 Woolwich, in 1843. After his death a testamentary paper 
 written by himself, was found locked up in a private re- 
 pository belonging to him. It was dated 1842, signed 
 and sealed by the General, bat was not attested in any 
 way. Probate of this paper having been moved for, Sir 
 H. J. Fust declined to make the grant, on the gi-ound that 
 the General not being engaged at the time on actual 
 military service, that is to say, not on an expedition, the 
 paper purporting to be his Will was not within the 
 exception of the 11th section of 1 Vict. c. 26. 
 
 With this case may be read that of In the goods of 
 Thome (g). There the deceased, a captain in the 4th West 
 India Regiment, wrote a paper which commenced thus : — 
 " Gape Coast Castle, Gold Coast, Nov. 2, 1863. Be it 
 known to all concerned . . . that in the event of my 
 death while serving in this horrid climate ... I leave 
 
 (o) As to the Wills of marines, 
 see "The Navy and Jilarines Wills 
 Act, 1865 " (28 & 29 Vict. c. 72). 
 This Act includes petty officers, 
 seamen, non-commissioned officers 
 of marines, or marines, and other 
 persons forming part of the comple- 
 ment of any of Her Maj esty 's vessels, 
 &c., exclusive of commissioned. 
 
 warrant, and subordinate officers, 
 and assistant engineers, and of 
 kroomen, or negro sailors. .Sect. 
 12 of 1 Vict. c. 26, as to the WiUs 
 of petty officers and marines, is re- 
 pealed by 28 & 29 Vict. u. 112. 
 (p) 3 Curt. 622. (1843.) 
 (?) i Sw. & Tr. 36 ; 34 L. J. P. 
 & M. 131. 
 
OF WILLS AND CODICILS. 275 
 
 and bequeath to my beloved wife, A. Thome . . . the sum 
 of £1521 .. 4 .. 9 . . . &c., &c." The testator signed this 
 paper, and his signature was witnessed. The deceased 
 having returned in the following year to England invalided, 
 shortly afterwards died in London. Administration with 
 this paper annexed was moved for in the Court of Probate, 
 and an affidavit being made to the effect that the deceased 
 had been. " ordered with a detachment of his regiment to 
 reinforce Her Majesty's troops on the Gold Coast," that 
 he had made his Will in contemplation of the march upon 
 which he was ordered, also that at the time of making it 
 he was in actual military service against an enemy, the 
 Court granted probate of the paper. Sir J. P. Wilde 
 said : — " I am satisfied on that affidavit that the deceased 
 was engaged in an actual military expedition against a 
 force in the field at the time when the Will was executed. 
 The case, therefore, comes within the definition of actual 
 military service given in Drummond v. Parish, and the 
 grant may be made." 
 
 Besides the general decision in this case, the Court Nature of the 
 enunciated a very important rule of practice to be observed required in 
 under similar circumstances ; namely, that before probate *'''^ °^^^ "^ 
 can be granted of an exceptional Will made by a person 
 within 1 Vict. c. 26, s. ll, an affidavit must be presented 
 to the Court setting forth the precise service on which the 
 deceased was engaged, and that a general affidavit merely 
 stating the fact of being in actual military service is not 
 sufficient. 
 
 The Wills Act 1838, says that the term " Will " shall Power of 
 extend to An Appointment by Will or by writing in the 
 nature of a Will, in exercise of a Power. 
 
 This brings us to the consideration of that peculiar Pijwers. 
 limitation of, or authority over, property real and personal, 
 which is known to the law of England under the name of 
 a Power. As Powers are connected with matters testa- 
 mentary, we will now glance cursorily at their nature. 
 
 " Powers are either Common Law authorities ; declara- What they are. 
 
 T 2 
 
276 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Power and 
 common law 
 authoi'ity 
 distinguished. 
 
 Power of 
 attorney. 
 
 Power to 
 dispose of an 
 estate. 
 
 Origin of 
 Powers. 
 
 tions or directions operating only on the conscience of the 
 person in whom the legal estate is vested ; or declarations 
 or directions deriving their effect from the Statute of 
 Uses ; 27 H. 8, c. 10 " (r). 
 
 " A Power given hy a Will or by an Act of Parliament, 
 as in the instance of the Land-tax Eedemption Acts, — to 
 sell an estate, is a Common Law Authority. The estate 
 passes by the force of' the Will, or Act of Parliament, and 
 the person who executes the Power merely nominates the 
 party to take the estate. A Power of Attorney is also a 
 Common Law Authority ; but the estate is not in this, as 
 in other cases, transferred by the instrument creating the 
 Power. It is a mere authority to execute a conveyance 
 in the place of the principal ; and the estate, therefore, 
 must be conveyed by the attorney, with the same solem- 
 nities as would have been requisite on a transfer executed 
 by the principal himself " (r). 
 
 " A Power to dispose of an estate, or a sum of money, 
 where the legal interest is vested in another, is a Power 
 of the second sort. The legal interest is not divested by 
 the execution of the Powers, but Equity will compel the 
 person seised of it to clothe the estate created with the 
 .legal right " (r). 
 
 The same learned writer informs us in his work on 
 Powers, that we are never to lose sight of the origin of 
 these authorities (s). He says that they sprang out of the 
 doctrine of uses, and that Powers were at first simply 
 declarations of future uses, or as we say now, trusts, of real 
 estate, and that now they are mere rights to limit the uses 
 thereof {f). After the doctrine of uses had been in existence 
 for some time, and great inconvenience had been ex- 
 perienced from its operation, the celebrated Statute of 
 
 (r) Sugden (Lord St. Leonards) 
 on Powers, 45, 46. Mr. Chance is 
 of opinion, that in point of law, 
 there is no recognised distinction 
 between a Power and an Authority. 
 
 Chance, Pow. 2. Farwell on 
 Powers, 1. 
 
 (s) Sug. Pow. 138. See Powell on 
 P. 1—6, 155. 
 
 {t) Id. 4, 190. 
 
OP WILLS AND CODICILS. 277 
 
 Uses (u) was passed, which declared that wherever a person The statute of 
 
 had the use or beneficial interest in lands, the seisin and ^^^^' 
 
 possession thereof should, henceforth also be united to the 
 
 use, and accordingly to him who had the use in any lands, 
 
 to him was given by this statute the whole estate in fee 
 
 simple. 
 
 Before this enactment, although the system of giving Uses before the 
 the use in lands was not fully recognised by the Courts of ^ ""^ "• 
 Common Law (x), yet in those which administered Equity, 
 it was upheld, and a feoffment made by A. to B. for the 
 use of C, without any consideration having been given by 
 B., conferi'ed no estate on B., but the Court of Chancery 
 declared him to hold simply for C.'s benefit. 
 
 It is to be inferred that Powers or Authorities, both Powers are 
 before and after the Statute of Uses, were simply rights gjgnation of 
 of designation, given to some person — the trustee — and property, 
 therefore binding the conscience of him to whom they 
 were given (y) ; while the estates to be created by force 
 of the Powers were future or contingent uses. The rules 
 of law on Powers over realty, as now existing, are attribu- 
 table mainly to the operation of the Statute of Uses (z), 
 that is, of course, so far as real estate is concerned, for this 
 enactment has no reference to personal estate. 
 
 By the old Common Law, as we have previously had oc- Powers not 
 casion to remark, this latter species of property was looked cemed*wUh°° 
 upon as far inferior to realty ; indeed, as Blackstone says, personalty. 
 our ancestors " entertained a very low and contemptuous 
 opinion of all personal estate, which they regarded as only 
 a transient commodity" (a). Accordingly, we must re- 
 member, that as Powers " were originally but modifications 
 
 ofUses," they were connected with land only. Again,perso- WhytMswas 
 
 so. 
 
 (m) 27 H. 8, c. 10. of the Common Law judges . . " 
 
 [x) "... although uses were ori- Sug. Pow. 16. 
 ginally creatures of equity, yet long {y) Sug. Pow. 17. 
 
 before the Statute of Uses, by reason (z) See Id. 24, 25. Pow. P. 5, 6, 
 
 of the previous Acts of Parliament, 155. 
 they had been under the conusance («) 2 Black. Comm. 384. 
 
278 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Doctrine of 
 eqiiity on the 
 subject of 
 limitations of 
 personalty. 
 
 Instances of its 
 character. 
 
 Chattels can 
 be settled by 
 deed or 'WUl. 
 
 Importance of 
 personalty in 
 our time. 
 
 nalty is the subject of absolute property, which realty is not, 
 for no one is able to possess more than an interest therein 
 which we call an estate ; and " no estates can subsist in 
 personal property'' by the general law of this country. 
 This being so, estates cannot be carved out of personal as 
 out of real property, and of course ' such expressions as 
 " declaring the limitations of a use," and others of a similar 
 character as descriptive of a Power, have no applicability, 
 strictly speaking, to personalty. Equity, however, in its 
 progress along the line of truth and common sense, has 
 allowed interests to be created in personal property, 
 analogous to those which the law allowed to be formed out 
 of realty, and at the present day an interest for life may be 
 given in a chattel similar to an estate for life in land. 
 
 " Since the case of Hyde v. Parratt (&), the distinction 
 between the bequest of the use of a personal thing, and 
 of the thing itself to any one for life, &c., has been com- 
 pletely laid, in the constructive operation of such a limited 
 gift, to entitle the restricted legatee only to the use of the 
 thing for the period expressed " (c). 
 
 Again, chattels may be settled by marriage articles (d) 
 or by Will, so as to go by reference to limitations of real 
 property in strict settlement as far as the rules of law 
 and equity will permit (e). 
 
 This shows that the disregard formerly entertained of 
 the importance of personal estate no longer exists, and 
 without entering into the history of the various steps by 
 which Equity, at any rate, has come to regard this kind 
 of property, we may state that it is at the present day on a 
 level with realty, so far-as the creation of certain equitable 
 interests therein by means of Powers is concerned. In 
 
 (i) 1 P. Wms. 1. 
 
 (c) Fearne, Gont. Kem. 406. 
 
 {d) These are considered as rough 
 minutes, heads, or instructions, 
 from which the marriage settle- 
 ment is afterwards to be drawn ; 
 Blcmdford v. Marliorough, 2 Atk. 
 
 545, Judgt. ; see also Cogan v. 
 DnfficU, 45 L. J. Ch. 307, Judgt. 
 of James, L. J. 
 
 (c) Trafford v. Trafford, 3 Atk. 
 347 ; Harrington v. Harrington, L. 
 R. 5 H. L. 87 ; 40 L. J. Ch. 716. 
 
OF WILLS AND CODICILS. 279 
 
 the words of our most popular text-writer, " Equitable How far 
 interests in personal property of a future kind may be "I'J'i''*^-® 
 created through the instrumentality of Powers, in a similar personalty 
 manner, and to the same extent as future estates in "y^meanTof 
 land," and " equitable estates " here mean such as created Powers, 
 through the medium of trusts. Wms. P. P. 308. 
 
 Whether the opinion as to there being no material dif- Apparent dis- 
 ference in point of law between an Authority, technically tween a Power 
 so called, and a Power, be right or wrong, is immaterial and an 
 
 ' * . " Aiitlionty. 
 
 for our present purpose, but some writers appear to have 
 
 regarded the lattei-, in contradistinction to the former, as 
 
 an authority given by some effective instrument, enabling 
 
 a person to make a declaration as to the future disposition 
 
 of property. Such person is said to be the Donee of the Definition of 
 
 Power ; he who creates it, the Donor ; the exercise of the ™ ' 
 
 Power is called an Appointment ; he who exercises it, 
 
 the Appointor, and the person in whose favour it is 
 
 exercised, the Appointee. 
 
 A Power, according to Mr. Chance, is "a liberty or Definitions of 
 authority reserved by, or limited to a party to dispose of ^ I'ower. 
 real and personal property for his own benefit, or for the 
 benefit of others, and operating upon an estate or interest, 
 vested either in himself or in some other person; the 
 liberty or authority, however, not being derived out of 
 such estate or interest, but overreaching or superseding it 
 either wholly or partially " (/). 
 
 Again, by the same living writer previously quoted, we 
 are told that "Powers of appointment, viewed in i-ega,rd to 
 the individuals who are to exercise them, are a species of 
 dominion over property, quite distinct from that free right 
 of alienation which has become inseparably annexed to 
 every estate" (g) ; in short, a Power is the ability to dispose 
 of property independently of any ownership, although a 
 Power may exist concurrently with the ownership (h). 
 
 (/) Chance on Pow. 1. drell, 10 Ves. 246, overniling 
 
 (3) "Wms. E. P. 286. Goodill v. Brigham, 1 B. & P. 192. 
 
 (A) Id. 287. Maundrelly. Maun- 
 
280 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Powers are 
 executory 
 interests or 
 mere declara- 
 tions of trust. 
 
 Powers of 
 appointment. 
 
 Appointment. 
 
 May be by 
 mere writing, 
 when mode of 
 execution of 
 Powers not 
 otlierwise 
 ordered. 
 
 Powers dis- 
 tinguislied. 
 
 The purposes for whicli Powers are created are in- 
 numerable ; and as our present object is to ascertain what 
 their connection is with matters testamentary, we will 
 merely refer the reader to the text-books which have 
 been mentioned, for further information on this intricate 
 subject. 
 
 " Powers are mere declarations of trust, and therefore 
 any words, however informal, which clearly indicate an 
 intention to give or reserve a power, are sufficient for the 
 purpose " (i) ; being also executory interests they may be 
 created by Will or deed, or by any other similar instru- 
 ment, and also by Act of Parliament (k). (e.g., E. of Shrews- 
 bury V. Eeightley, L. R 2 C. P. 130 ; 36 L. J. C. P. 17.) 
 
 Powers contained in either of the above-named docu- 
 ments, made exercisable at the discretion of the person 
 mentioned therein, are very commonly employed to enable 
 such person to appoint to others some estate or fund 
 designated. Such an authority is called A Power of 
 Appointment, and when it is exercised in pursuance of 
 the terms of the instrument creating it, the act itself is 
 termed an Appointment. 
 
 Although a Power must ordinarily be created by deed 
 or Will, yet, generally, an Appointment under it may be 
 made by a mere writing, if the original instrument pre- 
 scribes no other mode for its execution (I). If, however, 
 a deed or Will is directed to be employed, " the Power 
 cannot be legally exercised in any other manner" {I). 
 
 The following are most of the distinguishing epithets 
 which have been applied to Powers, according to circum- 
 stances (m) : — 
 
 (j) Sug. P. 102. See, however, 
 Chance, P. 31. 
 
 (Jc) Preamble to 37 & 38 Vict, 
 c. 37 ; and see Chance, P. 22. 
 
 (I) Sug. P. 203 ; Majorihanks v. 
 Sovmden, 6 Ir. Ecj. Eep. 238 ; 1 
 Dru. Ir. Eep. 11. 
 
 statement is not intended by the 
 present writer as any attempted 
 classification of Powers ; the object 
 is to explain terms. Swinburne 
 tells us (Parti, § 3), that "defi- 
 nitions are said to be dangerous in 
 law, " and this is, to a great extent, 
 
 (m) What foUuws the above true ; but still, if tenns be em- 
 
OF WILLS AND CODICILS. 281. 
 
 Mere, Bare, Naked, or Sirrvply collateral. 
 
 In gross or Collateral. 
 
 Appendant or Appurtenant. 
 
 Legal. 
 
 Equitable. 
 
 Strict. 
 
 Directory or Monitory. 
 
 Coupled with a trust, or with an interest. 
 
 •Imperative. 
 
 Discretionary, Permissive, or Arbitrary. 
 
 General. 
 
 Particular or Special. 
 
 Exclusive. 
 
 Non-exclusive, Accumulative, Mixed, Contingent, and 
 lastly. Joint and Separate. 
 A power simply collateral, or as it is often termed mere. Power drnpiy 
 hare, or naked, is " a Power to a person not having any 
 interest in the. land, and to whom no estate is given, to 
 dispose of or charge the estate in favour of some other 
 person .... Perhaps the best instance that can be 
 given of it is a Power to revoke a settlement, and appoint 
 new uses to other persons designated in the deed " {n). 
 
 ployed they must, or should he, this very feature, for no one can 
 capahle of definition, or at any rate peruse that treatise without per- 
 of some concise description tanta- ceiving the one defect it possesses, 
 mount for ordinary purposes to a namely, the lack of system in its 
 definition. Lord St. Leonards, as compilation. An able writer — whose 
 we have seen, classifies Powers into works, though now probably for- 
 two main kinds, Common Law gotten, are models of lucidity — very 
 Authorities, and Powers operating justly remarks of Lord St. Leonards 
 under the Statute of Uses. These and his book on Powers, that 
 he distinguishes again into appen- "much as is the profession indebted 
 dant or appurtenant, collateral or to him for his contributions towards 
 in gross, and simply collateral ; elucidating some of the most ab- 
 and this classification, he observes, struse parts of our law, it may be 
 "is important only with reference observed generally of this work, 
 to the ability of the donee to sus- that, the subject is not presented 
 pend, extinguish, or merge the under a natural and consecutive 
 Powers" (Sug. Pow. 49). The arrangement." 2 Atkinson on Con- 
 great work of Lord St. Leonards is, veyancing, 302. (1841.) 
 however, open to comment upon (n) Sug. on Pow. 47. 
 
282' 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Force at a 
 Power which is 
 not limply 
 collateral. 
 
 Powers colla- 
 teral, or in 
 gross. 
 
 Examples. 
 
 The donee of a Power simply collateral, being the 
 possessor of a mere authority, cannot by any act what- 
 soever, except that of complete execution, suspend or ex- 
 tinguish it (o) ; but other Powers may be extinguished, as 
 for instance, by release by their donees to any person 
 having an interest in the estate either in possession, 
 reversion, or remainder ( p) ; and we may remark that 
 " a Power, not svmply collateral, gives the complete 
 dominion over the estate to the extent of the Power "■ (q) ; 
 also that a general Power over any property is equivalent 
 to the absolute ownership thereof. 
 
 " Powers collateral or in gross," as distinguished from 
 those simply collateral, are those which are "given to a 
 person who had an interest in the estate at the execution 
 of the deed creating the Power, or to whom an estate is 
 given by the deed, but which enable him to create such 
 estates only as will not attach on the interest limited to 
 him " (r). In other words, if the benefits to be created 
 by the donee are to arise out of the estate in which he 
 has an interest, but in such a manner as not in any way 
 to affect his own enjoyment thereof, the Power enabling 
 him to create such interest is a collateral one (r). 
 
 Thus, "a Power to a tenant for life to appoint the 
 estate after his death amongst his children, a Power to 
 jointure a wife after his death, a Power to raise a term 
 of years to commence after his death for securing younger 
 children's portions . . . or a Power to a perfect stranger who 
 has no estate limited to him, to charge the estate interest 
 for his own benefit," are examples of Powers in gross or 
 collateral, since the estates to be created by them " can- 
 not in any event affect" that particular one out of which 
 they are to subsequently spring (r). 
 
 Whenever a thing is disannexed as it were from the 
 parent stem, or stands alone, it is said in legal parlance to 
 exist in gross, as, for example, where an advowson is 
 
 (o) Sug. P. 49. (5) Id. 153. 
 
 (p) Id. S2. (r) Id. 46, 47. 
 
OF WILLS AND CODICILS. 283 
 
 detached from a manor and afterwards disposed of sepa- 
 rately, it is called an advowson in gross. 
 
 "Powers appendant or appurtenant are so termed Powers ap- 
 because they strictly depend upon the estate limited to '^^urLiuint. 
 the person to whom they are given. Thus, where an 
 estate for life is limited to a man with a Power to grant 
 leases in possession, a lease granted under the Power may 
 operate wholly out of the life estate of the party ex- 
 ecuting it, and must, in every case, have its operation out 
 of his estate during his life, that is, the lease takes effect in 
 possession and is served out of the whole fee, and there- 
 fore, wholly or pro tanto displaces the life estate " (s). 
 
 It will be seen from what has been said, that the gi-eat Distinction tie- 
 distinction between Powers appendant or those annexed appralomi'^^d 
 to the property and those in gross, lies in this ; that in *» gross. 
 the former, the estate to be created by the exercise of the 
 Power is to take effect in possession during the con- 
 tinuance of the estate to which it is annexed ; as to make 
 leases ; whereas the estate to be created by the exercise 
 of a Power in gross is not to arise until after the 
 determination of the estate to which it relates, as to raise 
 portions for children (f) out of a life estate, by a term 
 of years commencing after the death of tenant for life. 
 
 Legal Powers are those which operate on the legal Legal snA 
 
 T ■ ■ 1 1-1 no 1 equitable 
 
 estate, m contradistinction to those which ettect the Power, 
 equitable ; and accordingly, if the donee of a Power have 
 such an authority over the legal estate, that by its exer- 
 cise a conveyance thereof may be effected, it will be a 
 legal Power ; if his authority so exist over the equitable 
 estate, the Power will be equitable; in other words, 
 enforceable only in equity (u). 
 
 Instances of legal Powers may also be seen in the cases 
 cited below {u) ; while instances of equitable Powers 
 are afforded by the ordinary authority conferred on sur- 
 
 (s) Sug. P. 46. V. Pratt, 33 L. J. Exch. 31 ; Vivian 
 
 (t) Watk. Conv. 158. v. Jegm, L. E. 3 H. L. 285 ; 37 L. J. 
 
 (m) Lewin on Trusts, 499 ; Easton C. P. 313. See Farwell on Powers, 2. 
 
281 
 
 WILLS Of PERSONAL PROPERTY. 
 
 Strict Powers. 
 
 Example. 
 
 nireetm-y or 
 
 Monitory 
 
 Powers. 
 
 Power coupled 
 with a trust. 
 
 viving trustees or other persons to fill up a vacancy in 
 the trust by appointing new trustees, or that given to a 
 woman by marriage articles, and by which she may possess 
 authority over real and personal estate, so extensive as 
 to enable her to disinherit her heir {x). Or again, " the 
 ordinary Power of appointment among children in a mar- 
 riage settlement, where personalty is vested in trustees " {y). 
 
 A strict Power is one that can "arise only under 
 the exact circumstances prescribed " by the instrument 
 creating it {z). 
 
 Thus, if the terms of a settlement declare that settled 
 property is vested in three, trustees, and direct that in 
 the event of the death of one of them the survivors shall 
 forthwith appoint a successor', the Power is a strict one, 
 and it must be carried into effect without delay by the 
 two survivors, who must observe the terms of the Power 
 strictly. Accordingly, if they appoint two new trustees, 
 such an exercise of their authority would be just as im- 
 proper as if they were not to exercise it at all (a), unless the 
 instrument creating the Power contain words which may 
 be construed as sanctioning the excess or deficiency (&). 
 
 Directory or Monitory Powers are those which in 
 their performance require a less rigid conformity with their 
 precise terms, as where trustees who had an advowson with 
 directions to present a person thereto within six months, 
 failed to comply therewith as regards the specified time. 
 The Court of Chancery held this Power to be merely 
 directory, which might be exercised by the trustees after 
 the expiration of the time mentioned, provided they all 
 joined in the presentation (s). 
 
 A Power coupled with a trust may be defined as a 
 Power which the donee thereof, by the terms of the instru- 
 
 {x) Sug. Pow. V. 1 ; Far. Pow. 2. 
 
 (y) See Lewin on Trusts, 499 ; 
 also Farwell on Powers, 2. 
 
 {z) Att.-Gen. v. Scott, 1 Ves. 415 ; 
 and see Lewln on Trusts, 601. 
 
 {a) Ex parte Davis, In re ClarTc, 
 
 2 Y. & C. 468 ; 12 L. J. Bank. 38. 
 (b) Meinhertzhagen v. Dams, 1 
 Coll. 33.'5 ; 13 L. J. Ch. 457 judg- 
 ment of Knight Bruce, V. -C. Bill- 
 man v. Westwood, 24 L. J. Ch. 
 57. 
 
OP WILLS AND CODICILS. 285 
 
 ment creating it, is absolutely bound in conscience to 
 execute for the benefit of certain specified persons. 
 
 The party possessing a Power of this kind is regarded 
 in Equity as a trustee for its due and proper execution, 
 aud has no discretion, similar to that vested in the donee 
 of a Tnere Power, as to whether he will exercise or not. 
 
 Accordingly, while Courts of Equity will not give their Non-execu- 
 
 .,.,, J. i-'/- -n . tion of a naked 
 
 aid m the case ot a non-execution oi a Tnere rower, yet Power. 
 when the Power is coupled with a trust, these Courts will Equity -vriil 
 interpose, both to execute the Power if not exercised, or to f^^^^ting'^ '" 
 remedy an execution which may happen to be defective. Powers coupled 
 In short, where there is a Power coupled nvith a trust, ^ ™ ' .- 
 express or implied. Equity deems the donee a trustee 
 under obligation to effectuate the trust, and "wiU. not 
 permit his negligence, accident or other circumstances to 
 disappoint the interest of those, for whose benefit he is 
 called upon to execute it " (6). 
 
 An implied trust is created in a Will when a testator Implied trust. • 
 bequeathes .property and accompanies the bequest with 
 precatory words, that is, expressive of authorising, recom- 
 mending, hoping, requesting, &c., addressed to the im- 
 mediate legatee concerning other objects of his bounty ; 
 but the words must be imperative in tone, and the objects 
 and subject-matter of the gifts certain. (Read the case of 
 Bernard v. MinskuU, Johns. 276 ; 28 L. J. Ch. 649.) To 
 create an implied trust, then, these three requisites must 
 concur, and if they do not, the gift will be deemed abso- 
 lute and unfettered by any trust. (See Hayes & Jar. 
 on Wills, 158 n. (c). ) Thus, where a man devised and Example of mo 
 bequeathed a freehold estate and all his personalty to his ^"^ '^ ™^ ' 
 wife, " to be at her disposal in any way she may think 
 best for the benefit of herself and family," the Court held 
 the gift absolute (c), for the words were not imperative, 
 
 {b)liOvd.'Ei3.oninSroT^nV. Iliggs, (c) Read Lord Langdale's judg- 
 
 8 Ves. 570, Affirmed on App. 5 ment in Knight v. Knight, 3 Bear. 
 
 Myl. & Cr. 92 ; ToUelv. Toilet, 1 L. 173 ; 9 L. J. Ch. 354 ; affirmed 11 
 
 CEq.jHardingv. Qlyn, 2 L. C. Eq. C. & F. 513, sub nom. KnigU v. 
 
^86 
 
 WILLS OF PERSONAL PEOPEETYi 
 
 Example of an 
 imiJied trust. 
 
 Example of 
 implied trust 
 as to part of 
 the residue. 
 
 and, therefore, the presumption of an implied trust was 
 rebutted. Here is a case which well illustrates the doc- 
 trine of implied trusts : — 
 
 The Hon. Frances Harley, by her Will, gave to S. P., 
 whom she appointed her sole executrix, £3,000, and a 
 like sum of £3,000 in addition for her trouble in acting 
 as executrix. To S. P. also she gave all her residuary 
 personal estate, but this bequest was accompanied by 
 the words " well knowing that she will make a good use 
 and dispose of it in a manner in accordance with my views 
 and wishes." Among the papers of the testatrix there 
 were found various unattested memoranda, specifying 
 certain charitable and other bequests which she desired to 
 be made. The executors of the Will of the Earl of 
 Oxford, who was sole next-of-kin of the above testatrix, 
 having filed a bill for the administration of her estate and 
 to have the judgment of the Court of Chancery as to the 
 effect of the residuary clause in her Will, it was held by 
 Knight Bruce, V.-C, that S. P. did not take the residue 
 beneficially but as a trustee for the next of kin. From 
 the Vice-Chancellor's decision S. P. appealed, but Lord 
 Chancellor Truro affirmed the judgment of the Courts 
 below, and both these learned judges proceeded on the 
 question of intention as indicated by the facts before them 
 and the language employed in the Will (cf). It is clear, 
 then, that in this cfess of case the decision of the Courts 
 depend more upon the circumstances of each than upon 
 any canons of construction apparently applicable to them. 
 The following case is one where a partial trust was h^ld 
 to be created : — A testator devised and bequeathed his pro- 
 perty to trustees upon trust to sell the same, pay his debts 
 and hand over the residue to B., to whom he bequeathed 
 it absolutely, " trusting she would carry out his wishes with 
 
 Boughton ; see Larribc v. Eamcs, L. 
 R. 10 Eq. 267; iScoav. Key, 35 Beav. 
 291 ; M'Corviictc v. Grogan, L. R. 4 
 E. & T. App. S2. 
 
 {d) Briggs v. Penny, 3 De Gr. & 
 Sm. 525 ; 21 L. J. Ch. 265 ; on 
 appeal, 3 Mac. & G. 546 ; 21 L. J. 
 CIi. 273. 
 
OF WILLS AND CODICILS. 2S7 
 
 regard to the same, with which she was fully acquainted." 
 Shortly before the date of the Will, the testator had verbally 
 expressed his wishes to B., who had written them down 
 for her guidance. Held, that B. took the property bene- 
 ficially, but subject in part to the wishes which the testator 
 had expressed to her, and which she had bound herself to 
 carry out (e). 
 
 Precatory or recommendatory words (/) in a Will, Precatory 
 accompanied by an absolute gift, clearly and unmistakably will, accom- 
 bequeathed to the person concerning whom the testator ^^'^^^ -f^^ 
 expresses a hope &c., that he will effectuate the intentions to devisee or 
 set out in the Will as to benefitting other persons, have, ^^ ^' 
 however, been held not to create an implied trust (g). 
 This is obviously in accord with common sense, because 
 the most that can be inferred from such directions under 
 the circumstances is, that the donee of the gift could either 
 keep it himself, or bestow it ultimately on the parties 
 recommended to his bounty j ast as he might think proper. 
 
 In ordinary cases of Wills containing these precatory General effect 
 
 ... . . , . . 1 , . .of precatory 
 
 words, the intention ot the testator is considerea imperative words in a 
 that is, of course where they are such as could not reason- ^^■ 
 ably be construed otherwise, and the devisee or legatee ihay 
 be compelled — but only where practicable — to give effect 
 to the injunction laid upon him by the testator (h). 
 . The leaning of Equity is against implying trusts where 
 it is not abundantly clear that a trust was intended, or 
 where precatory words are vague, and the persons and 
 property referred to are uncertain {i). Inconvenience is 
 
 (e) Irvine v. Sullivan, L. R. 8 Lewin on Trusts, p. 119. 
 Eq. 673 ; 38 L. J. Ch. 635. See (g) Eaton v. Watts, L. E. 4 Eq. 
 
 also Wood V. Cox, 2 Myl. & Or. 684 ; 151. 
 
 Bernard v. Minshull, Johns. 276, (A) Lewin on Trusts, 116 ; but 
 
 292 ; 28 L. J. Oh. 649, cases whicli read the notes to Harding v. Qlyn, 
 
 governed the decision in Irvine v. 2 L. C. Eq. 948 el se.q. 
 Sullivan. (»') Knight v. Boughton, 11 CL 
 
 (/) That is, those expressive of & F. 513, 548, 551. See also Sale 
 
 helie'f, hope, confidence, heseeching, v. Moore, 1 Sim. 534 ; and notes to 
 
 authorising, and so forth. See Harding v. Glyn. 
 
with an in- 
 terest. 
 
 288 WILLS OF PERSONAL PEOPERTY. 
 
 also an ingredient to be considered in determining whether 
 or not a binding trust is created (Ic). 
 Power coupled With regard to a Power coupled with an interest, it 
 maybe defined as one where the donee possesses a Power of 
 appointment over property in which he himself has a direct 
 interest. Accordingly, it is the opposite of a bare Power 
 possessed by one person over the property of another. 
 The case of Hearle v. Greenbank {I), decided by Lord 
 Hardwicke in 1749, affords an instance of this species 
 of Power. There, a testator, after dividing his whole 
 property to trustees in trust for his daughter, gave the 
 latter a Power over the realty. The daughter died at the 
 age of nineteen, after exercising her Power by Will, and 
 the question was whether the Power was well executed. 
 Lord Hai^wicke, C, held that it was not ; because al- 
 though as an infant the daughter might have exercised a 
 mere Power, yet, inasmuch as this was a Power coupled 
 with an interest, she could not. Lord Hardwicke, in his 
 judgment, stated that there was no precedent either at 
 Law or Equity where it had been held that the execution 
 of a Power, other than a naked one, by an infant was good, 
 and that finding none, he would not create a precedent. 
 Had the Power been simply collateral (m), the young lady 
 might have exercised it by Will, but as she had an equitable 
 interest in the property, and the equitable reversion in 
 fee descended upon her, her Power was over realty, and 
 coupled with an interest, and therefore was not exercisable 
 by an infant. It is almost superfluous to remark that 
 since 1 Vict. c. 26 (n), any disposition whatsoever of pro- 
 perty by Will made by a person under the age of twenty- 
 one, is void. 
 
 What is somewhat inaccurately termed an imperative 
 
 Power. 
 
 {h) Thorpe v. Owen, 2Hare, 607 ; that mere, hare, and simply col- 
 
 12 L. J. Ch. 417. lateral aie, as regards Powers, 
 
 (I) 3 Atk. 695 ; 1 Yes. 298. synonymous terms. 
 
 (m) The reader -will remember («) Sect. 7. 
 
OF "WILLS AND CODICILS. 289 
 
 Power is in reality a trust (o), and the preceding observa- 
 tions on Powers coupled with a trust, are applicable to 
 these so-called imperative Powers, which are the reverse 
 of discretionary 6r arhitrary (p) Powers, the latter 
 being in fact equivalent to those simply collateral. A 
 discretionary trust for sale, however, cannot, like a Power 
 simply collateral, be exercised by a person under the age 
 of twenty-one years (q). 
 
 "An important distinction is established between General a.ni 
 general and particular or special Powers. By a general ^If^i p^T,era. 
 Power we understand a right to appoint to whomso- 
 ever the donee pleases. By a particular or special 
 Power it is meant that the donee is restricted to some 
 objects designated in the deed creating the Power, as to 
 children " (r). The possession of a general Power to appoint 
 by deed or will, may, therefore, be regarded as practically 
 equivalent to the ownership of the property over which 
 the Power has to be exercised. The donee thereof may, 
 of course, at any time appoint to himself, or leave the 
 property by Will in any way he may choose, just as if he 
 were sole owner, and not merely the possessor of a Power 
 over it (s) ; but yet, if he has a Power to appoint hy Will 
 only, absolute ownership has been held not to exist (s). 
 
 A person who has a general Power over property, need ^™^yp\,gr 
 not in a devise or bequest thereof refer to the Power, but need not refer 
 may execute it by simply disposing of the property, entire ^^^l^ ^ 
 or in part, as though the same were his own absolutely (t). 
 
 (o) See the remarks of Wilmot, case whicli shows the cennection of 
 
 C. J., in Attorney-General v. Down- implied ti-usts with Powers ; Mor- 
 
 ing, "Wilmot, 23. ga,n v. Gronow, L. E. 16 Eq. 410 ; 
 
 (p) See e.g. Maskelyne t. Maske- 42 L. J. Ch. 410. 
 
 lym, Anib. 750, Lancashire v. («) See In re WilMnson, L. R. 
 
 Lancashire, 1 De G. & S. 288 ; 17 4 Chanc. App. 586 ; Jn re Pou-elVs 
 
 L. J. Ch. 270 ; Beid v. Jteid, 30 Trusts, 39 L. J. Ch. 188. 
 
 Beav. 388 ; £rown v. Gellatley, 31 {t) See Harrington v. Harrington, 
 
 Beav. 243. 13 Sim. 318 ; 12 L. J. Ch. 316 (Ee- 
 
 (q) King v. Bellord, 32 L. J. Ch. sidue); and IViUay v. Barnett, L. E. 
 
 646. 6 Eq. 193 (Part); andlViot. c. 26, 
 
 (r) Sug. Pow. 394 ; In re Cap- s. 27. 
 lin's Will, 34 L. J. Ch. 578, a 
 
290 
 
 WILLS OF PERSONAL PKOPERTY. 
 
 Otherwise if 
 the Power be 
 special. 
 
 Wills Act, 
 1838, refers 
 only to general 
 Powers. 
 
 Case. 
 
 Perpetuity. 
 
 Eule of law 
 against per- 
 petuities. 
 
 Where, however, the Power is special, a Will does not exe- 
 cute such a Power, unless reference is made thereto in the 
 Will. This being so, a general bequest in this case is use- 
 less (tt), for the Wills Act, 1838, refers only to general 
 Powers, and leaves special Powers to be governed by the 
 same rules as they were subject to before the Act. One 
 object of this Statute was to get rid of the difference 
 between property and Power, and to make reference to 
 the latter unnecessary in a Will {u). Accordingly, where 
 a lady had a general Power of appointment over sums 
 of money, a bequest by her of pecuniary legacies was 
 held to operate as an execution of the Power {x) ; and 
 if a person have a general Power over a fund of £1000, 
 and also possess other personal estate of his own, and 
 leave ten legacies, each of £100, without referring to 
 his Power, this will be a good execution thereof (i/) ; but 
 if he had no property of his own such an execution of 
 the Power would be invalid. 
 
 Powers being used for the creation of executory in- 
 terests, if their direct or indirect object be to create a per- 
 petuity, they will be considered simply void {z), and special 
 or particular Powers have a tendency to create a perpe- 
 tuity, that is, to tie up the property referred to either for 
 ever, or for an indefinite period (a). But it is important 
 to consider whether the special Power was created by Will 
 or by deed, for the point of inquiry in this case is the 
 instrument creating, not executing, the Power (a). 
 
 The rule as to perpetuities, " which the law abhors," is 
 that every limitation of property, real or personal, which 
 Tnay exceed in duration a life or lives in being, and 
 twenty-one years afterwards (allowing for the period of 
 actual gestation), is, from its commencement, void (6). 
 
 (tt) In re CapUn's Will, 34 L. J. 
 Ch. S78. 
 
 (x) In re Wilkinson, L. E. i Ch. 
 App. 587. 
 
 (y) Davies v. Thorns, 18 L. J. Ch. 
 
 212. 
 
 (a) Sug. Pow. 151. 
 (a) lb. 396, 397. 
 (6) Wms. P. P. 253. 
 
OF WILLS AND CODICILS. 291 
 
 Where gestation does not exist, then for a life or lives 
 in -being, and twenty-one years afterwards only (c), and 
 where a general Power is concerned the rule applies only 
 to the time from which it is exercised, not created. 
 
 A special Power for an unmarried child to make an 
 appointment, to take effect on marriage, is also void, on 
 the same ground (d), for the marriage may, of course, 
 take place more than twenty-one years after the death of 
 the donor of the Power, and the rule is that it must 
 necessarily be exercisable within a life or lives in being, 
 and twenty-one years afterwards. 
 
 We remarked on the preceding page, quoting from the 
 work of Lord St. Leonards, that it is important to observe 
 the nature of the instrument which creates a Power, when 
 considering the question whether or not a perpetuity 
 will be the result of its creation or exercise. The ap- 
 plication of this statement may be seen in a case to which 
 we have already referred (d). There, in a settlement 
 made in 1821, on the marriage of T. G. and M. L., a 
 special Power was inserted for the appointment by the 
 parties jointly of certain monies in favour of their children. 
 The wife died in 1832, without exercising her joint power, 
 leaving her husband surviving her, and — we may add 
 for present purposes — two daughters, L. G. and E. G. 
 In 1846, T. G, the husband, made several appointments 
 under his Power, and among others, to such certain uses 
 as his two daughters should appoint, there being general 
 Powers to each to appoint by deed or Will, two sums of 
 £7000 respectively. In 1857, E. G. married H. F., and 
 appointed her £7000 to the trustees of her settlement. 
 In 1860, T. G. executed another deed, confirming, by way 
 of appointment, all his previous appointments and dispo- 
 
 (c) 2 Black. Com. 174. For a (1732). But read Cadell v. Palmer, 
 
 good description of the evils that 1 C. & F. (H. L.) 372 ; the leading 
 
 would result if perpetuities were case on Perpetuities, 
 allowed, see the judgment of Sir {d) Morgan y. Gronow, L. E. 16 
 
 J. JekyU, M;.E., in the case of Eq. 1; 42 L. J. Ch. 410. 
 Stanley v. Leigh, 2 P. "Wms. 687 
 
 u 2 
 
293 WILLS OF PEESONAL PROPERTY. 
 
 sitions. L. G., the otber daughter, died in 1868, a spinster, 
 leaving a Will, purporting to appoint her £70Q0 to her 
 sister by virtue of the Power contained in the deed of 
 1846. T. G., the father, died in August, 1870. In October, 
 1870, the married daughter, E. F., executed a deed which, 
 after reciting her parents' marriage settlement of 1821, her 
 father's deeds of 1846 and 1860, and her own marriage 
 settlement of 1857, appointed the sum of i£7000 to be 
 paid by the trustees of her parents' settlement to the 
 trustees of her own settlement. 
 
 Two questions arose on these circumstances : first, 
 whether the Power to appoint by Will, conferred on L. G. 
 by the deed of 1846 was a valid one ; and, second, whether 
 the Power to appoint on marriage given to E. G. was valid. 
 
 Lord Selborne, G., sitting for Lord Eomilly, M. R., de- 
 cided these questions, — the first in the negative, and the 
 second in the affirmative, founding his judgment as to the 
 latter upon the deed of 1860. His lordship said :" . . . No 
 interest in the capital of the £7000 is given to Louisa, 
 except by virtue of a Power to appoint by Will contained 
 in the deed of appointment of 1846. If she had been 
 living at the date of the instruTnent creating the Power 
 under which this appointment was made, the appoint- 
 ment would have been good. But she was not living 
 then, and both on authority and principle it seems clear 
 that as nothing could vest in her or her representatives, 
 except at a time which might be beyond the limits allowed 
 by the law of perpetuities, I am obliged to hold that the 
 appointment is void. It is the same as if there had been 
 a gift to her for her own benefit, on a condition only to be 
 ascertained at the moment of her death, or as if there had 
 been a gift to her on her attaining the age of twenty-five." 
 
 In this case, the date of the original instrument which 
 was a deed, and not a Will — speaking from the time of 
 testator's death — must be reckoned from that, and we 
 are also to remember that T. G.'s life was the one in being 
 to start with. Now, had L. G. been in existence in 1821, 
 
OF WILLS AND CODICILS. 293 
 
 she, on becoming by his later confirmatory appointment 
 the donee of a general Power, might have exercised it at a 
 date beyond the time allowed by the law of perpetuities, 
 which only concerns special and not general Powers ; for 
 as regards the latter, the limits of perpetuity commence 
 from the time of exercising the Power (e). 
 
 An exclusive Power,, as its name indicates, is one Exclusive 
 enabling the donee to exclude at his pleasure, any objects °'^^^^' 
 of the Power named in general terms, and to appoint in 
 favour of some one or more other objects of the Power at 
 his discretion, but such discretion must, before 1874, have 
 been directly given him (/). 
 
 All Powers of appointment being now primd facie Exclusive 
 exclusive, if in a marriage settlement the parties agree ^^^^^ i^i-ted 
 to insert a Power to be exercised by them in favour of i'' marriage 
 their children, it will be competent to them to appoint 
 to certain of those children to the exclusion of the 
 others (g). 
 
 This doctrine, however, in regard to Powers of appoint- All Powers 
 ment among children, has only lately received legis- ^^^^l^^i^ 
 lative acknowledgment, but is now the rule of law as to wise created. 
 all appointments, whether of realty or personalty, made 
 by virtue of a Power under any circumstances, except — 
 (1.) where the instrument creating it shall declare the 
 amount or share, from which no object of the Power shall 
 be excluded ; or, (2.) names some one or more objects 
 who are not to be excluded (g). 
 
 At one time it was a doctrine of equity that, if the lUusory 
 1 P appointments, 
 
 donee oi a rower to appomt a sum oi money among cer- 
 tain persons, gave substantial amounts to some and 
 merely nominal to others, such a mode of exercising the 
 Power was at least unjust, if not indeed fraudulent. Ac- 
 cordingly, appointments thus made were designated 
 
 («) Sug. Pow. 395, 495. mer, L. E. 6 Ch. 160 ; 39 L. J. Ch. 
 
 (/) See Turner v. Bryoms, 31 805. 
 
 Beav. 303, and Paske v. Haselfoot, (g) 37 & 38 Vict, c, 37. 
 33 Beay. 125, and BuUeel v. Flum- 
 
294 WILLS OF PERSONAL PROPERTY., 
 
 illusory, and, not witliout some show of reason, ■were set 
 aside by the Court of Chancery (h). 
 
 Doctrine now " However, that doctrine was found inconvenient. No 
 one knew exactly how much a substantial portion of the 
 property was, and it was impossible to say, without re- 
 sorting to litigation, what the least sum was which the 
 appointor was authorised to appoint " (i). 
 
 1 wm. 4, c. 46. By the Act 1 Wm. 4, c. 46 (k), the doctrine of illusory 
 
 , appointments was abolished, and the donee of a Power 
 
 may now, by the provisions of this Statute, give £1000 to 
 
 one object of the Power, and a shilling to another, at his 
 
 Actonlyrelated discretion. But although the appointor had such latitude 
 
 appduted. allowed him as to the amounts to be given to the persons 
 subject to his will and pleasure, yet the persons them- 
 selves were not permitted to be wholly passed by in his 
 distribution. Accordingly, if there were two objects of a 
 Power, and the amount to be appointed was £1000, the 
 appointor might have given one of them £999 19s. llfd., 
 and the other a farthing ; but had he omitted the other 
 altogether, the whole appointment would have been void. 
 This glaring absurdity no longer exists, the recent Statute, 
 already quoted (37 & 38 Vict. c. 37), having made every 
 Power virtually exclusive, except where the amount to be 
 taken by each object is named, or where the object him- . 
 self is distinctly included by the terms of the instrument. 
 
 Tendency of j^, ^^^^ hardly be stated that the Act of Parliament 
 
 Parliament to •' 
 
 remove techni- just referred to, greatly extends the authority of persons 
 matter of having the right to exercise Powers of appointment ; but 
 
 property. one feature in the policy of the age being the unfettering, 
 
 as far as practicable, the performance of all rights over 
 property and divesting that performance of undue tech- 
 nicalities, the donee of a Power, which may not be very 
 
 (7i) Bead Aleyn v. Belchier, and (k) " To alter and amend the law 
 
 notes, 1 L. C. Eq. 377, with the relating to illusory appointments." 
 
 ahove statute. This Act does not affect deeds de- 
 
 (i) Qwinsford v. Dunn, L. E. daring the amount of a share. 
 
 17 Eq. 405 ; 43 L. J. Ch. 403. Sect. 2. 
 Judgt. of Sir G. Jessel, M.B. 
 
OF WILLS AND CODICILS. 295 
 
 precise in its terms, can now eitlier give what he likes to 
 its objects, or give them, or some of them, nothing at all. 
 
 Where one or more of the objects of a Power could not Non-exclusive 
 be excluded by the donee from a share of the property, ^'""'^'^■ 
 and the donee was not required to give a substantial 
 share of such property to each object mentioned in that 
 creating instrument, such a Power was termed non- 
 exclusive. But, as we have seen, every Power executed 
 since the Statute 37 & 38 Vict. c. 37 (July 30, 1874), 
 although created before that date, is now exclusive as to 
 their execution, except where the author of the instru- 
 ment originating it, has named the sum to be taken by 
 each recipient, or has distinctly stated which of them 
 shall or shall not be excluded. 
 
 A Cumulative Power is where the donee thereof is 
 able to confer by its exercise a double benefit on the 
 same person; hence, this kind of Power is sometimes 
 termed double. " If an estate be settled with Powers, it 
 must depend upon the intention to be collected from the 
 instrument whether the Powers ai-e cumulative or not. 
 The general construction would be against double Powers 
 in the same person for the like purpose " (l). The doc- 
 trine on this subject seems analogous in principle to 
 that of equity, on the subject of double Portions (m) and 
 Cumulative legacies (n). 
 
 A mixed Power is one with which is mixed a trust, A mixed 
 whereof "the outline only is sketched by the settlor, 
 while the details are to be filled up by the good sense of 
 the trustees. The exercise of such a Power is impera- 
 tive, while the mode of its execution is matter of judg- 
 ment, and discretionary" (o). 
 
 " A mixture of trust and Power is not to be confounded 
 with a common trust to which a Power is annexed ; for. 
 
 (Z) Sug. Pow. 103 ; Wigsell t. 
 
 {n) As to these, see 2 "Wms. Exors. 
 
 8mit%, 1 Sim. & Stu. 321 ; 1 L. J. 
 
 pt. 3, bk. 3, oh. 2, sect. 7, 1289, and 
 
 Ch. 121. 
 
 read Tuckey v. Henderson, 33 Beav. 
 
 (m) Mmdagm v. Montague, 15 
 
 174, an excellent illustrative case. 
 
 Beav. 565. 
 
 (o) Lewin on Trusts, 19. 
 
296 
 
 WILLS OF PERSONAL PROPERTY. 
 
 trust. 
 
 in the former case, as in a trust 'to distribute at the dis- 
 cretion of the trustees,' they are bound at all events to 
 distribute, and the manner only is left open ; but in the 
 latter case, the trust itself is complete, and the Power 
 being accessory, may be exercised or not, as the trustee 
 may deem expedient " (o). 
 
 Illustrative Thus, where a testator directed his trustee " to divide 
 
 case. 
 
 an estate among his, the testator's, first cousins, as he m 
 
 his discretion might think proper, by dividing the whole 
 equally among them, or between two or more, or giving 
 the whole to any one of> them for such estates and in- 
 terests, and subject to such conditions and limitations as 
 he should think proper" ; it was held, that the trustee bad 
 a power of selection only, and that if he appointed to 
 more than one, he must do so equally among them (p). 
 Mixed Power ^ mixed Power then, is obviously very similar in its 
 
 similar to one i i i i 
 
 coupled with a nature to a Power coupled with a trust, although perhaps 
 the following distinction may be drawn between the two 
 in regard to the trust feature connected with each. In 
 the former, as Mr. Lewin says, the details of the trust are 
 to be filled up by the good sense of the trustees ; in the 
 latter, it is apprehended, the details are not necessarily so 
 left to the discretion of the trustees, but the duty devolv- 
 ing upon them may be of a more defined and of a more 
 peremptory character (o). 
 
 A Contingent A Contingent Power is one which can only arise upon 
 a given contingency ; or, if the donee be not designated, 
 it is one, the ability to exercise which, depends upon the 
 occurrence of some event specified by the donor thereof 
 as necessary to happen before the Power can be executed, 
 by him who may become by circumstances the donee. 
 If the Power itself be vested in some uncertain donee, 
 whose right to exercise it is dependent upon a contingent 
 event, the donee cannot do anything until that event has 
 
 (o) See Lewin on Trasts, 19, {p) Ward v. Tyrrell, 25 Beav. 
 
 600. 563 ; 27 L. J. Ch. 749. 
 
 Power. 
 
OV WILLS AND CODICILS. 297 
 
 actually happened, for he himself is " a contingent per- 
 son," and can only exercise the Power on the occurrence 
 of a contingent event. 
 
 "There is," says Lord St. Leonards, "a distinction Power given 
 where the Power is given to a designated person to be pe*son,'^and 
 executed upon a contingency, and a Power given to a one given to a 
 contingent person, if we may use the expression "(g). Ac- person!"^^" 
 cordingly, if a general Power of appointment over a fund 
 be given to A., exercisable by him at the death of B., it 
 appears that A. may during B.'s lifetime make a valid in- 
 strument which purports to execute that Power, because 
 he has, and will have, the Power, should the contingency, 
 namely, B.'s death, happen. But if a Power were given 
 to be exercised by the survivor of two persons, the actual 
 donee in this case, being unascertained, would be a 
 contingent person. And although one of the two might 
 probably have the better chance of being the survivor, 
 yet the Power, not having been vested in him, as in 
 the former case, his exercise of it would be void. The 
 distinction, as observed by Sir W. Page Wood, V.-C, in 
 his judgment in Thomas v. Jo7ies (r), is an excessively 
 refined one, but it seems not to have been doubted 
 by any judicial decisions in this country. Lord Chan- 
 cellor Westbury, however, in affirming the judgment of General Power 
 the Vice-Chancellor said, "I should be of opinion that survivor of two 
 a general Power of appointment over an equitable estate f^"^^""'';™^^ 
 given to the survivor of two persons, to be executed by by will during 
 deed or Will, could be well exercised by a Will made i^^^jj' ^ ™^ 
 during the lives of both the persons by that individual, 
 who afterwards proved to be the survivor." The Power 
 in this case is not presently vested in either of the par- 
 ties, but unless both die at the same moment of time, it 
 is sure to become vested in one of them, when a certain 
 event happens, namely, the death of the other. Accord- 
 
 (q) Sng. Pow. 269. 1 De G. J. & S. 63 ; 32 L. J. Ch. 
 
 (r) 2 Jo. & H. 475 ; 31 L. J. Ch. 139. 
 732 ; affirmed by Lord Westbury, C. 
 
298 
 
 WILLS OB" PERSONAL PROPERTY. 
 
 Power exer- 
 , cised by general 
 liequest made 
 before Power 
 has rested in 
 the testator. 
 
 Contingent 
 Power and 
 contingent 
 interest dis- 
 tinguished. 
 
 Joint and 
 
 separate 
 
 Powers. 
 
 Example of 
 these Powers. 
 
 ingly, if each of the parties makes a Will, whether pur- 
 porting to be in execution of the Power, or merely as a 
 general bequest, the Will, by virtue of section 24 of the 
 Wills Act, 1838, speaking as if executed immediately 
 before his death, will execute the Power; and by sec- 
 tion 27 of the same Act, a bequest of personalty described 
 in a general manner, includes any personal estate which 
 he may have power to appoint as he may think proper — 
 that is, a general Power of Appointment. So that, 
 although " a man has no capacity to make a gift under a 
 Power before he has got it," yet " when he makes a general 
 bequest, and afterwards acquires a Power, that Power 
 takes effect by virtue of the general bequest." — (Per Sir 
 W. P. Wood, V.-C, in Thomas v. Jones.) 
 
 A Power given so as to be exercisable by the survivor 
 of a certain number of persons, is therefore, as pointed 
 out by Lord Westbury, in reality not distinguishable in 
 principle from a trust for the benefit of that survivor ; 
 the latter being a contingent interest, and the former a 
 contingent Power. 
 
 Lastly, we have to mention joint and separate Powers, 
 and the nature of these will be understood by considering 
 the following illustrative case : — By the settlement made 
 on the marriage of A. and B., certain real estates were 
 conveyed to trustees upon trust, to pay the rents to A. for 
 life, and after his death, to B. for life, and after the death 
 of A. and B., upon trust for such one or more of the chil- 
 dren of. the marriage as A. and B. should by deed have 
 during their joint lives jointly appointed ; and in case of 
 the death of A. in the lifetime of B., before any such ap- 
 pointment should be made, then as B. should by deed 
 appoint. A. and B. jointly appointed two-fourths of 
 the estate to two of their children. A. died first, and 
 B. appointed the other two-fourths to two other of the 
 children. Held, that the appointments made by B. alone 
 were valid, because the language employed by the parties 
 clearly meant that whatever was not appointed by A. 
 
ON WILLS AND CODICILS. 299 
 
 and B. jointly, should, in the event of the death of either, 
 be subject to the sole or separate appointment of the 
 other. Such separate appointment was therefore held 
 valid (s). 
 
 A Power of appointment, of which mention has been Power of 
 made, " is an authority to give an estate in any property ^Pi"'™'"'^°*' 
 to another, or to determine the nature and amount of 
 the interest which another shall take in property ; and if 
 no particular mode of executing it is prescribed by the 
 instrument which creates the Power, it may be executed 
 by a simple writing." 
 
 This brings us to the consideration of what is required Execution of 
 in the execution of a Power when the mode of effecting 
 this is prescribed by the donor. 
 
 The general rule is, both as regards realty and person- General rule, 
 alty, that the donee of a Power must conform rigidly to 
 the directions of the donor as to the instrument by which 
 it is to be exercised, and the conditions to be observed in 
 its execution. 
 
 Accordingly, should the donor prescribe a Will as the ^^^ "°* 
 
 p . , -r, , , .,, 1 available ■where 
 
 instrument tor executing the Power, the donee will not be Will is required 
 at liberty to employ a deed for the purpose ; and where a ^^^ weversd. 
 deed is named, then a Will must not be used. 
 
 Again, if the consent of any particular person be re- Consent of 
 quired to validate the execution of the Power, that consent person cannot 
 cannot be dispensed with (t). ^. dispensed 
 
 1 !• -n 11 ■''itn) where it 
 
 But if a person be created donee of a Power, and the is required, 
 donor thereof declares that it may be executed by any 
 writing not testamentary, but yet enjoins the donee to 
 observe other solemnities not usual in the execution of 
 ordinary deeds or writings, the latter will be at liberty Undue formah- 
 
 ■^ . ° • ties prescribed 
 
 to ignore such directions {t) ; and if the Power be executed need not be 
 " in the presence of two or more witnesses, in the manner <='"°pl'«'l ^^' • 
 in which deeds are ordinarily executed and attested," a 
 perfect execution will be effected. 
 
 (s^ In the matter of Simpson's L. J. Ch. 415. 
 Settlement, i Be G. & Sm. 521 ; 20 (<) 22 & 23 Vict c- 35, s. 12, 
 
300 
 
 WILLS OF PERSOKAL PEOPBETY. 
 
 Power exer- 
 cised by Will. 
 
 Power, not in 
 terms, one to 
 be exercised 
 by Will. 
 
 Who may 
 exercise a 
 Power. 
 
 Infant. 
 
 No appointment made by Will, in exercise of a Power 
 shall be valid, unless the same be executed in all respects 
 as other Wills are ; and every Will executed in conformity 
 with the terms of the Wills Act, 1838, shall be a com- 
 plete testamentary exercise of a Power, notwithstanding 
 that some additional solemnity shall have been expressly 
 required to be observed by the testator (u). 
 
 A Power of appointment, however, which is not in terms 
 a Power to appoint " by Will," is not well exercised in the 
 manner specified by the Wills Act, 1838, unless the 
 formalities required by the Power are also observed {x). 
 
 Every person who is capable of disposing of a vested 
 estate, may exercise a Power over any kind of property. 
 Consequently, a married woman, although by the general 
 rule of law unable to make a Will {y), may yet validly 
 exercise a Power even over realty without the consent of 
 her husband, and if the Power be general she may do so 
 in favour of whomsoever she pleases. 
 
 It makes no difference whether the Power was given to 
 her when sole or after marriage. But if it was given to her 
 to execute expressly as " being sole," it could not be exer- 
 cised by her during coverture, for the marriage would 
 operate as an extinguishment of the Power. 
 
 An infant, although at Common Law, unable to alien 
 his estate, except by force of a particular custom, may now, 
 in contemplation of marriage, and with the sanction of 
 the H. C. J., execute any Power over any property, unless 
 otherwise shall have been declared by the instrument 
 creating the Power {z). 
 
 An infant, however, as he cannot make a Will of any 
 
 (m) 1 Vict. c. 26, s. 10 ; Hubbard single women, unless the donor or 
 V. Lees, L. K. 1 Ex. !i55 ; 35 L. J. 
 Ex. 169. 
 
 (x) Taylor v. Meads, 4 Do G. J. 
 & S. 597 ; 34 L. J. Ch. 203. 
 
 (y) Married women possessed of 
 separate estate, whether real or 
 personal are, as regards the tes- 
 tamentary power, on a level with 
 
 settlors of the property otherwise 
 order. And now, married women 
 may bequeath their savings derived 
 from the pursuit of any trade, occu- 
 pation, or calling. See Taylor v. 
 Meads, supra, and 33 & 34 Vict. c. 
 93. 
 (z) 18 & 19 Vict. c. 43, s. I. 
 
OF WILLS AND CODICILS. 801 
 
 kind, cannot, of course, execute a testamentary Power of 
 appointment, and any Will made by a person under the 
 age of twenty-one, or by any other person under disability 
 of any kind, would be absolutely void, and would not be 
 rendered valid by any previous or subsequent declaration 
 respecting it. 
 
 " A donee of a Power may execute it without referring Reference to 
 to it or taking the slightest notice of it, provided that 
 
 the intention be to execute it (a), and this remark applies 
 as much to personal as to real property." 
 
 Where there is no other property upon which a Will can Operation, 
 operate, besides the property over which the testator has 
 a Power of appointment, a Will duly executed by him is an 
 execution of the Power (&), although no mention is made 
 of the Power, and the Will is simply in' the form of an 
 instrument bequeathing a legacy. And if there be other 
 property upon which the Will can operate, such circum- 
 stance will not necessarily prevent the execution of the 
 Power, if the intention is clear (c). 
 
 The Chancery Division of the H. C. J. is the proper Court of 
 tribunal to determine the question of the due execution of 
 Powers, by Will or otherwise, and to relieve where neces- 
 sary in cases of their defective execution (d). 
 
 The Court will not interpose in the case of a non-execu- Non-execution 
 tion of a mere Power, for that would be depriving the 
 donee of the right of discretion in regard to the exercise 
 of the Power (e). In favour of certain persons, the Court 
 will, however, aid the defective execution of Powers. (See 
 Tollett V. Tollett, infra, note (d) ). 
 
 The Chancery Division of the H. C. J. may, if it should Power of the 
 think fit, inquire into the execution of a Power, even after °^^ ' 
 
 (a) Sugden on P., Sti ed. 289 ; 1 C. Eq. 946 ; Johnson v. Touchett, 37- 
 
 Vict. c. 26, s. 27 ; In re Powell's L. J. Ch. 25 ; Farington v. Parker, 
 
 Trusts, 39 L. J. Ch. 188. L. R. 4 Eq. 116 ; Gart/iv. Townsend, 
 
 (i)Shdfordv. Aclcmd, 23Beav. 10. L. R. 7 Eq. 220 ; Me Dyke's Estate, 
 
 (c) In the goods of Fenwick, I.. R. L. R. 7 Eq. 337 ; Paglary. Tongue, 
 
 1 P. & D. 319 ; 36 L. J. P. & M. 54. L. R. 1 P. & D. 158. 
 
 {d) E. g. see TolM v. Toilet, 1 L. (e) Smith's Man. Eq., Tit. 1, 
 
 C. Eq. 227 ; Harding v. Olyn, 2 L. Cap. 1, Par. 3, § 4. 
 
302 WILLS OF PERSONAL PEOPEKTY. 
 
 a grant of Probate ; and it may differ both as to law and 
 facts from the Probate Division, and decide that the Power 
 is not well executed. Even a decision of the Judicial 
 Committee of the Privy Council on the same point was held 
 not to bind Chancery in its jurisdiction over Powers (/). 
 
 The WiUs Act. The Wills Act, 1838, did not affect in any way the 
 Ecclesiastical Court, nor, consequently, the present Pro- 
 bate Division of the H. C. J., in its dealing with Powers ; 
 " all that the statute does is to enact that Powers to be 
 executed by testamentary acts shall, as to the mode of 
 execution, be the same as in cases of ordinaiy Wills " (/). 
 Let us next see how the Probate Division of the H. 
 C. J. deals with cases that arise under the latter part 
 of section 18 of the Wills Act, 1838. It is there pnacted 
 that although the act of marriage revokes a Will, yet 
 that a Will made in exercise of a Power of appointment 
 does not so operate, when the real or personal property 
 would not in default of such appointment pass to the 
 testator's executor or administrator, or the person entitled 
 as next of kin under the Statute of Distributions (22 & 23 
 Car. 2, c. 10). 
 
 Case. The following is a case in point : — A. by his Will gave 
 
 to B. a Power to dispose by Will of certain property, which, 
 in default of appointment by her, was to devolve on the 
 person or persons, who, at her decease, should be her " next 
 of kin." B., in pursuance of such Power, executed a Will 
 in favour of C, whom she afterwards maiiied, but who 
 died in her lifetime : — Held, that B.'s, Will was not revoked 
 by her subsequent marriage, as the case fell within the 
 exception of the 18th section of the Wills Act (g). 
 
 At first sight, it would appear that this case did not 
 come within the exception, because the property, in default 
 of appointment by the testatrix, was to devolve upon her 
 " next of kin " at her decease. But, it is to be observed 
 that' the words of the Statute are, not " next of kin " 
 
 (/) Brenchley v. Lynn, 2 Kob. 
 
 (g) In the goods of McVicar, 
 
 Eoc. Bep. 441.— Dr. Lushington's 
 
 L. K. 1 P. &D. 671; 38L. J.P. 
 
 judgt. 
 
 & M. 84. 
 
OF WILLS AND CODICILS. 303 
 
 merely, but " next of kin under the Statute of Distribu- 
 tion." At one time, the simple words " next of kin," were " ^^'^} of kin'- 
 thought to mean next of kin according to that statute, "nearest of 
 and such was the view enunciated by Sir John Leach in '^•" 
 the case of Mmsley v. Yov/ng (h). But on appeal to the 
 Lords Commissioners, this decision was overruled (h), and 
 the meaning of the words " next of kin," was held to be 
 " nearest of kin." Such being the construction of the law, 
 it was applied by the Court of Probate to the case we 
 have cited (i), and, inasmuch as the expressions "next 
 of kin," and " next of kin under the Statute of Distribu- 
 tions," may have widely different significations in legal con- 
 templation, the Court decided that the Will of the testatrix 
 was not revoked. The reader is referred to a very lucid 
 account of the Statute of Distributions, given by Vice- 
 Chancellor Wickens in a recent case (k), which came before 
 him, and to which, as it illustrates the mode of applying 
 the statute under certain circumstances which we shall 
 have occasion to notice again presently. 
 
 A Will made in the exercise of a Power of appointment Mamage does 
 
 ^ \ not revoke 
 
 is not revoked by a subsequent marriage, when, in default testamentary 
 of appointment, the property of which it disposes passes ^pp"!"*"!™*- 
 under the settlement creating the Power, although the 
 same persons would take under such settlement as would 
 have taken in case of intestacy under the Statute of 
 Distributions (I). 
 
 The case in which the forearoing point was decided was -'^ ^^ 9°.°^^ 
 
 ° ° ^ of FenwicK. 
 
 as follows : — 
 
 A married woman, in pursuancd* of the Powers given to 
 her under a particular deed, executed them by Will and 
 codicil in favour of her son. Her mari'iage was subse- 
 quently dissolved by the Court of Divorce, and she re- 
 married. After her second marriage, she executed another 
 Will, by which, without reciting any Power, or using 
 
 {h) 2 My. & K. 82, 780. Eq.. 286 ; 41 L. J. Ch. 130. 
 
 (i) See p. 302 (g). (I) In the goods of Fmwick, L. E. 
 
 {k) Ms Boss's Trusts, L. R. 13 1 P. & D. 319 ; 36 L. J. P. & M. 54, 
 
3U1 
 
 WILLS OF PERSONAL PEOPERTT. 
 
 Disposal by 
 Will of the 
 custody and 
 tuitiou of a 
 child, 
 
 "Will "extends 
 to the appoint- 
 ment of a 
 testamentary 
 guardian to an 
 infant. 
 
 Father's sole 
 absolute right 
 in this respect. 
 
 words of revocation, she again disposed of the property 
 as in the first Will, but named no executor. She was 
 possessed of property, other than that' named in the first 
 Will, on which the second could have operated. Held, 
 that the first Will was not revoked by the second marriage, 
 as it came under the exception contained in section 18 
 of the Wills Act, 1838. Nor was it revoked by the second 
 Will, because the two being in favour of the same person 
 they were quite consistent with each other. Accordingly, 
 probate was granted of all the papers, as together contain- 
 ing the Will of the deceased, to the executor named in 
 the first Will (m). 
 
 Having now shortly considered some points in the 
 rudimentary learning on the vast subject of Powers, we 
 will next proceed to the examination of another signi- 
 fication of the word " Will," accorded it in the Statute !■ 
 Vict. c. 26. The Act says that it shall extend to a dispo- 
 sition by Will and Testament or devise, of the custody 
 and tuition of any child. 
 
 By the present law of England, a father may, by a deed 
 or testamentary instrument (n), provide for the custody 
 and tuition, after his death, of all or any of his children 
 during their infancy, that is, until they shall attain a 
 certain age, or until that .of twenty-one years, but not 
 beyond. The person or persons who may be so appointed 
 by a father for such purpose, are styled Testamentary 
 Guardians, and no person whatsoever has a right to 
 appoint testamentary guardians over children, except their 
 
 (m) See n. (I). And for further 
 authorities as to the exercise of 
 Powers of appointment, see Phipson 
 V. Turner, 9 Sim. 227 ; In re 
 Powell's Trusts, 39 L. J. Ch. 188 ; 
 rVebb V. Sadler, L. K. 8 Ch. 419 ; 
 42 L. J. Ch. 498 ; SlarJi v. Dah/ns, 
 L. E. 10 Ch. 35 ; 44 L. J. Oh. 205 ; 
 and the approved cases there cited. 
 
 (m) The power to appoint testa- 
 mentary guardians by "WiU or deed 
 
 was given to 'a father by Stat. 12 
 Car. 2, c. 24. Any kind of docu- 
 ment may be testamentary, if duly 
 executed, and provided it is, on its 
 face, intended to have operation 
 after the death of the person who 
 makes it. See 1 Wms. Exors., pt. 
 1, bk. 2, ch. 2, sect. 3, 104 ; In the 
 goods of Coles, L. R. 2 P. & D. 362 ; 
 41 L. J. P. & M. 21 ; judgment. 
 
OF WILLS AND CODICILS. 305 
 
 father, who may however waive the right vested in him, 
 if he should think proper, in the interests of his 
 children (o). 
 
 He may, by his "Will, nominate a guardian for his child, Mother may 
 so as to exclude the mother from filUng the office. If, f^^^^t^e'^^'^ 
 however, he does not do so, she may, by the appoihtment guardianship 
 of the Chancery Division of the High Court of Justice, deatti.* 
 occupy that position, which in such case is hers — as it 
 is said — ^both by nature and nurture (p), yet subject, as 
 we see, to the will and pleasure of her husband, who, 
 while living, is himself the guardian of his children by 
 nature and nurture (q) during their infancy. 
 
 But although a father may appoint a guardian for his How father's 
 child by WiU, he cannot ordinarily do so by a deed qualified. 
 amounting to an abnegation of parental power and 
 rights (r), unless that deed is made with his wife under 
 36 Vict. c. 12, or is to operate after his death, in which 
 case it .is, of course, equivalent to a testamentary in- 
 strument. 
 
 The reason of this is, that the law considers the custody. View which the 
 &c., of a child by its father to be not only natural in ^ fether'^s duty! 
 itself, but also that he of all persons is, privnd facie, the 
 most suitable and proper to direct the education of his 
 children, with the view to their becoming good citizens, 
 and so a source of strength to the State. In other words, 
 for a father to give up the custody and tuition of his 
 children to strangers, except for reasons founded on some- 
 
 (o) See the judgt. of Lord Hard- tamentary guardianship is not as- 
 
 wicke in Blake v. Blalce, Amb. Signable ; also that children have a 
 
 306, and that of Lord Eldon in natural right to the care of their 
 
 Lyons v. BUnkvn, Jacobs' Eep. mother. " See also the case of E^g. 
 
 145, both cited at length iu the v. Clarice, Re Alicia Race, 7 E. & 
 
 notes to Eyre-7. Ommtess of Shaftes- B. 186, reported as In re Race, 26 
 
 lury, 2 L. C. Eq. 675, 677. L. J. Q. B. 169- 
 
 {p) Mendes v. Mendes, 3 Atk. (q) Judgt. of Lord Chancellor 
 
 624, Judgt. of Lord Hardwicke. King, 3 P. "Wms. 153. 
 
 The same learned judge also laid (r) Hamilton v. Hector, L. R. 6 
 
 down the following propositions on Ch. 701 ; 40 L. J. Ch. 693, Judgt. 
 
 the subject in Mellish v. Be Costa, of Lord Hatherley, C. 
 2 Atk. 14 : " It is clear that a tes- 
 
306 
 
 WILLS OP PEKSONAL PROPERTY. 
 
 thing certain, or probaWe to be, beneficial to them, is to 
 
 contravene public policy. To such an extent has the law 
 
 carried this principle, that even where a husband and wife 
 
 have separated in consequence of the gross misconduct of 
 
 the former, and the husband executes a deed purporting 
 
 to allow the mother of his children to have the custody 
 
 f?'t"*! no of them, such deed would, but for a recent Statute (s), 
 36 Vict. u. 12. ' . ^ ■" 
 
 be, so far as this covenant was concerned, wholly in- 
 operative, on the ground of being contrary to public 
 /■policy (t). Yet, if the father could have been, and now 
 can be, proved to be such a person that his presence 
 would be likely to prove absolutely injurious to his 
 children's morals or dangerous to their safety, in that 
 case, the exclusion of the paternal right by agreement 
 would not have been, and is not, in derogation of public 
 policy (u). Still further does the law carry its ex- 
 treme respect for the paternal, as distinguished from the 
 maternal, authority over children, since although a husband 
 may appoint his wife testamentary guardian to his chil- 
 dren, yet where the father dies without so appointing her, 
 the mother, even then, is not necessarily guardian to her 
 
 (s) 36 Vict. c. 12. "An Act to good and welfare of society." 
 
 amend the law relating to the Jndgt. of Turner, L. J., lq Hope v. 
 
 custody of infants," and which re- Bope, 26 L. J. Ch. 417 ; 8 De 6. 
 
 peals Talfourd's Act, 2 & 3 Vict. M. & G. 731. See also the case of 
 
 c. 64. This Act provides that an Westmeath v. Westmeath, Jacob's 
 
 agreement in a separation deed, Rep. 126, cited by Lord Justice 
 
 made between a father and mother, Turner, in which Lord Eldon, on 
 
 whereby the former gives up to the ground of public policy, ordered 
 
 the latter the custody and control two very young chUdi-en to be de- 
 
 of his children, shall not be in- livered to their father, notwith- 
 
 vaUd only in consequence thereof. standing an express agreement 
 
 But the agreement cannot be en- between him and their mother to 
 
 forced, unless it wiU certainly be the contrary. " I know," says the 
 
 for the benefit of the children. Lord Justice, "of no authority, 
 
 (t) "The law and policy of this and believe there is none, contra- 
 country givea the custody of his vening this doctrine of Lord Eldon 
 children to the father, and invests . . . ." 
 
 him with the control over them, (v) See Swift v. Swift, 34 Beav. 
 
 and that not for his own gratifica- 266 ; 34 L. J. Ch. 394. Judgt. of 
 
 tion, but on account of his duties Turner, L. J. 
 with respect to them, and for the 
 
OF WILLS AND CODICILS. 307 
 
 children at all events, and for all purposes, but only by 
 nature and nurture. Accordingly, in a case where the Case, 
 children of a widow petitioned the Court of Chancery to 
 appoint their mother their guardian, Knight Bruce, V.-C, 
 said that, " in no rank of life would he appoint a mother to 
 be guardian of her children, without having some infor- 
 mation as to the father's family ; " meaning, it is presumed, 
 information as to their views and wishes on the sub- 
 ject (w). Further, in regard to an infant's religious 
 teaching, the general rule is that he shall be brought up 
 by his testamentary guardian in his father's religion, and 
 that only (x). 
 
 We stated at page 305, that a father cannot ordinarily V^^'Ha policy. 
 by a deed, to operate inter vivos, agree to give up the 
 custody, control, guardianship, or tuition of his children, 
 because that by so doing, he would act contrary to what 
 public policy directs and requires. If a father possessed 
 the unqualified power in question, it would amount to 
 this, that a mere stranger to the children might, at the 
 father's bidding, or by his permission for, or without, a 
 consideration, assume his delegated authority over them. ^°y p^tlic 
 
 policy IS 
 
 This, we have seen, cannot be done ; but yet, strange to apparently 
 say, a very near approach to such a transaction as that ""'? *f^J™^ 
 of a father directly giving up the custody of his children giving up the 
 to a stranger — and which we have before indicated — is g^dren to a 
 permitted by our law to hold good. Thus, if A., who is stranger. 
 in no way related to B., bequeaths to B. a legacy on con- 
 dition that he will give up the guardianship, tuition, &c., 
 of his child to C. a proper person, B. may perfonn this con- 
 dition in order to secure his legacy ; and it has been held 
 that the Court of Chancery could compel a father to give 
 security not to interfere with his child after taking the 
 legacy bequeathed to him as a compensation for giving up 
 his right to superintend his daughter's education {y). This 
 
 (to) In re Cook, 20 L. J. Ch. 392. (y) Colston v. Morris, 6 Madd. 
 
 (x) In re Ne/wbery, Infants, L. E. 19. 
 1 Ch. 263 ; 35 L. J. Ch. 330. 
 
 X 2 
 
808 
 
 WILLS OF PERSONAL. PROPERTY. 
 
 A mother can- 
 not appoint 
 testamentary 
 guardians ; 
 
 doctrine, which is founded upon considerations concerning 
 the benefit which may accrue to a child by reason of a 
 departure from the rule in partipular instances, cer- 
 tainly looks very much like a subtle evasion of a plain 
 rule of law (s). For, it may be asked, why is a father 
 able to effectually abdicate his position in order to 
 comply with a man's Will, and yet would have been 
 unable to enter into a valid executory contract to do 
 so in that same person's lifetime? Is there not an 
 infringement of public policy as much in one case as in 
 the other ? In answer to this, it may be said, in the first 
 place, that everything that may tend to the real welfare 
 of an infant is to be regarded as in some measure con- 
 tributing to the advantage of the State, and that Chancery, 
 administering the right of the Sovereign as parens patrice, 
 will therefore, in adjudicating upon cases where infants 
 are concerned, look first of all to, and provide for, 
 their interests, even where doing so may create a 
 struggle between these and the feelings of a parent. 
 Moreover, if a father siiaplj permits a person, for a con- 
 sideration of value to himself, to assume authority over 
 his children with a view also to their immediate or ulti- 
 mate benefit, this is obviously a different thing from 
 entering into a contract with another person with the 
 design merely to shift from his shoulders a burden which 
 the law has imposed upon him ; and accordingly, such a 
 proceeding is not regarded as involving a contravention 
 of the policy of the law (a). 
 
 A mother — even if a widow — cannot appoint a testa- 
 mentary guardian to her children, but, as before stated, 
 she may be appointed such by her husband; indeed, 
 any woman, whether married or single, may hold the 
 office of guardian, and the subsequent marriage of a 
 
 (u) That the rule is plain and 
 well founded, see the Judgments 
 delivered by the full Court of 
 Appeal, in VcmsUtwrt v. Vansiitart, 
 2 De G. & J. 249 ; 27 L. J. Ch. 
 
 291. Particularly read the Judgt. 
 of Turner, L. J. 
 
 (a) Notes to Eyrs v. Lady Shaftes- 
 bury, 2 L. C. Eq. 678, 4th ed. 
 
OF WILLS AND CODICILS. 309 
 
 feme sole will not necessarily cause her guardian- but she may 
 
 ship to cease. But for obvious reasons, a married office 
 
 ■woman may not. be the most suitable person for the as other 
 
 position of a sole guardian; accordingly, where the duty '"''^^"^'^^ 
 
 of appointing a guardian devolves upon the High Court womanwiil 
 
 of Justice, a married woman would not be selected to "o*''^ 
 
 1 T f • r 1TT1 appointed sole 
 
 act, at any rate as sole guardian ot an iniant. Where guardian by 
 
 a contest arises for the guardianship of an infant, oUuito^""^ 
 and a tribunal of first instance appoints a guardian or 
 guardians, the appellate Court will not, except for very 
 strong reasons, interfere with the discretion exercised by 
 the Court below. The appointment of a married woman 
 has, however, been held a reason for inteifering with such 
 discretion ; and in the same case it was also decided that, 
 where a deceased father has nominated no testamentary 
 guardians to his children, but has expressed wishes on the Wishes of 
 subject, those of the mother should also be respected, and whether liring 
 d fortiori, if her husband's and her own had been similar °^ ^^^ ^H 
 or identical on the point (6). In the case cited below, the bythe High 
 mother, who had died sometime after her husband, had aithra''Vher "^ 
 made a Will, purporting to appoint A. and B. guardians WiJl is inope- 
 of her children, and in one of these persons, it was shown ^ "^P"^ *^- 
 that the father during his lifetime had manifested gi-eat 
 confidence. Accordingly, the Court decided that, although 
 the mother's actual appointment by her Will was inopera- 
 tive, yet her obvious wishes were entitled to respect, and 
 so were carried into effect, the Court appointing the 
 persons named in the paper. 
 
 A Will appointing testamentary guardians is required Will appointing 
 by the statute 12 Car. 2, c. 24, to be attested by two Steted°by* 
 witnesses, and of course such is the case now, but the *"» witnesses. 
 attesting witnesses, it is apprehended, should not be the 
 nominated guardians themselves, although where the ap- Guardian 
 pointment is made by deed, as it may be under the aeed'may ^ 
 same statute, the fact of one of the attesting witnesses attest the deed 
 
 (6) See In re Kaye, L. K. 1 Ch. 387. 
 
310 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Will merely 
 appointing 
 guardians, and 
 not disposing 
 of personalty, 
 not entitled to 
 probate. 
 
 Foundation of 
 the jurisdic- 
 tion of the 
 High Court of 
 Justice as to 
 grant of 
 probate. 
 
 guardian is a 
 trustee for all 
 purposes. 
 
 being a gQardian has been held no bar to his acting as 
 such (c). 
 
 It is not, however, easy to see why a guardian may 
 not also attest the Will appointing him — except on the 
 ground of undue influence being exercisable at a time 
 when it could be but feebly resisted — because it is not only 
 not necessary to prove such an instrument like other Wills, 
 but Sir J. P. Wilde, J. 0., decided that a Will merely 
 appointing guardians, is not entitled to probate (d). " The 
 jurisdiction of this Court " [of Probate], said that learned 
 judge, "to grant probate of a testamentary paper, is founded 
 on the fact that it affects personal property. This Will does 
 not affect personal property, and is therefore not entitled to 
 probate." The Will in this case did not appoint an exe- 
 cutor, and in answer to the application that administra- 
 tion of the effects of the deceased should be granted to 
 the widow, with the Will annexed thereto, Sir J. P. 
 Wilde stated Lady Chester's case (e) to be a conclusive 
 authority against it, and the counsel who moved the 
 Court, himself cited in addition, that of Gilliat v. 
 Gilliat (/), as being also against him ; so .that this 
 point may be looked upon as settled. It would seem also^ 
 to be a deduction from In the goods of Morton {d), that 
 no executor is required for a Will which merely appoints 
 guardians of infants, and does nothing more, because the 
 guardians themselves must necessarily be the executors of 
 such a Will. 
 
 The office of a testamentary guardian amounts to a 
 trusteeship for all purposes, and where, therefore, his 
 ward has property, he has the legal estate. A testamen- 
 tary guardianship also vests in the survivor or survivors 
 of those holding that position ; whereas if joint guardians 
 be appointed by the High Court of Justice, the death of 
 one of them causes the entire guardianship to end (g). 
 
 (c) Morgan v. HatcheU, 19 Beav. (e) 1 Vent. 207 ; 3 Keb. 30. 
 86 ; 24 L. J. Ch. 135. (/) 2 Phillim. 222. 
 
 (d) In the goods of Morion, 3 (g) Lewin on Trusts, 230, text, 
 Sw. & Tr. 422 ; 33 L. J. P. & M. 87. and n. (e). 
 
OF WILLS AND CODICILS. 311 
 
 The person appointed guardian of an infant, whether by How all 
 his father or by the High Court of Justice, is also regarded regarded ty 
 as a temporary parent (A), and he "performs the office ^'Ti^d"* 
 both of the tutor and curator of the Roman laws ; the y^^g^ ^nd 
 former of which had the charge of the maintenance and Curator, 
 education of the minor, the latter the care of his fortune ; 
 or, according to the language of the Court of Chancery, 
 the tutor was the committee of the person, the curator of 
 the estate. But this office was frequently united in the 
 Civil Law, as it is always in our law with regard to 
 minors, though as to lunatics and idiots it is commonly 
 kept distinct " (i). 
 
 The objects for which guardians are appointed to in- Objects with 
 fants are various, the chief being to provide effectually for ^^ns are 
 their maintenance, education, and protection. An infant fFPomted to 
 not being able by himself — except in certain cases, for 
 instance, to present as patron of a benefice (k) — to per- 
 form any legal act so as thereby to bind himself (I) ; he 
 cannot therefore defend an action exc^t through his 
 guardian, and if he has not one, he may apply to the 
 Chancery Division of the High Court of Justice to assign 
 him one (m), and the guardian appointed is called a gna.r- 
 dian ad litem (m). When an infant sues, however, he does Guardian at? 
 so by a person called his next friend (n), and if his guar- ' '"' 
 dian — whether testamentary or otherwise — acts for him, he distinguished, 
 is designated by the former appellation. We need hardly 
 add that an infant is amenable personally to the criminal 
 law — as to all offences after the age of fourteen, and in 
 many cases after seven. As to his testamentary acts, 
 they are valueless, and cannot be" rendered otherwise by 
 his adopting them after attaining full age. 
 
 (h) 1 Black. Coram. 460. Eead " The Infants' Belief Act, 1874." 
 JEx parte Earl of Ilchester, 7 Yes. (wi) Jud. Act,1875,orderl3,rulel. 
 
 380. («) Id. order 16, rule 8. The prac- 
 
 (i) Ibid. tice of the Equity Division of the 
 
 (jfc) And see for other cases, 11 High Court of Justice is the same as 
 
 G. 4 & 1 "W. 4, c. 47 ; 2 & 3 Yict. that of the Court of Chancery hefore 
 
 c. 60 ; 13 & 14 Vict. c. 60. the Jud. Acts. This will be found 
 
 (Z) See 37 & 38 Vict. c. 62— in 1 Daniel's Chanc. Prac. 
 
312 
 
 WILLS OF. PERSONAL PEOPERTY. 
 
 The rules of 
 equity prevail 
 in all matters 
 relating to the 
 custody, &c., 
 of infants. 
 
 Equity Divi- 
 sion of the 
 High Court of 
 Justice to 
 have cogni- 
 zance of all 
 causes where 
 the wardship, 
 &a., of infante 
 concerned. 
 Form of a 
 paper is 
 immaterial in 
 considering 
 whether it is 
 testamentary 
 or not. 
 
 Intention of 
 maker that 
 it should 
 operate after 
 death is the 
 correct test. 
 
 What docu- 
 ments not in 
 the form of a 
 Will have been 
 held to be 
 testamentary. 
 
 By the Judicature Act of 1873, sect. 24, sub-sect. 10, 
 it is enacted that, "In questions relating to the cus- 
 tody and education of infants, the Rules of Equity 
 shall prevail;" and with regard to what Division of 
 the High Court of Justice is to take cognizance of 
 matters relating to infants, the same statute enacts, 
 in sect. 34, that there shall be assigned to the Chancery 
 Division of the said Court, all causes and matters con- 
 cerning the wardship of infants, and the care of infant's 
 estates (o). 
 
 In conclusion, we have only to state that the word 
 " Will " extends to the dispositions we have already men- 
 tioned, and " to any other testamentary disposition " (p). 
 This simply means that whatever be the form of a paper, 
 or the language therein employed, if intelligible, whether 
 the writer knew he was actually making a testamentary 
 paper or not, it may, if duly signed and attested, operate 
 as a Will, provided that the intention of the person 
 making it clearly was that it should have effect after his 
 death (q). Accordingly, " a deed poll or an indenture, a 
 deed of gift, a bond, a marriage settlement, letters, drafts 
 on bankers, the assignment of a bond by indorsement, 
 receipts for stock, and bills indorsed ' for A. B.,' an in- 
 dorsement on a note, and notes payable by executors 
 to evade the legacy duty, have been held to be testa- 
 mentary " (r). 
 
 The formalities which are required by law in executing 
 a document so as to render it testamentary and so 
 entitled to probate, must engage our attention in the 
 next chapter. 
 
 (o) On the subject of guardianship 
 generally, the reader should peruse 
 the notes in Hargrave & Butler's 
 Coke upon Littleton, 88 6 ; 1 Black. 
 Coram. Ch. 17; Story's Eq. Jur. 
 §§ 1333-1361 ; and particularly the 
 case of Syre v. Lady Shaftesbury 
 and the notes thereto, 2 L. C. Eq. 
 645. 
 
 (i)) 1 Vict. c. 26, s. 1. 
 
 {q) This is the true criterion for 
 determining whether a paper is 
 testamentaiy or not. 
 
 (r) See 1 Wms. Exors. pt. 1, bk. 
 2, ch. 2, sects. 3, 104, 105, and the 
 notes. Also read the Judgment of 
 Sir J. NichoU in Passmorf v. Pass- 
 more, 1 Phillim. 216 (1811). 
 
CHAPTER IV. 
 
 THE DtTE EXECUTION OF A WILL. 
 
 We now come to the consideration of the formalities Tie execution 
 prescribed by law for the due Execution, Eevocation, "^ * ^*^- 
 and Revival of Wills. To these we will respectively 
 refer in general terms and then in detail : and first as to 
 the due execution of Wills. 
 
 The testator having written his Will, or had it written Signature or 
 for him, must sign his name at the end or foot of the ^^^3^^°^ 
 document (a) ; or if he pleases he may make his mark (b), 
 or some other person may sign for him (c), or make £(, mark 
 by his direction, or perhaps even by his gesture in certain 
 cases [d), and in his presence. 
 
 By the law of Scotland, to which country the Wills Holograph 
 Act, 1838, does not extend, if a Will be holograph, that is, ™\^to%e 
 written by the testator's own hand, no witnesses are attested by 
 necessary to attest and subscribe his signature (e) ; but by ^^. g^ 
 the law of England, two witnesses at least are required to ^y that of 
 do so (e), whether the Will be hologi'aph or otherwise, and 
 whether it be of realty or personalty, or made for any 
 purpose whatever. They are, moreover, required to be 
 present at the same time, so far as regards either seeing 
 
 (05) 1 Vict. c. 26, s. 9 ; 15 & 16 his signature, is therefore imma- 
 
 Vict. u. 24 ; see In the goods of teiial, and the same doctrine is 
 
 Dilkes, L. E. 3 P. & D. 164 ; 43 applicable to the subscription of the 
 
 L. J. P. & M. 38. witnesses. See In the goods of Amiss, 
 
 (J) BaJcer v. Dening, 8 A. & E. 2 Eob. Eco. Eep. 116 ; Int 
 
 94 ; 7 L. J. Q. B. 137. "If it be of £ny on, 42 L. J. F. &M. 52. 
 once considered, that a mark will (c) 1 Vict. c. 26, s. 9. 
 
 satisfy the word sign in the statute {d) In the goods of Davies, 2 Eob. 
 
 (1 Vict. c. 26), it is too much to re- Ecc. Eep. 337. 
 quire it to be investigated whether («) Paterson's Compendium of 
 
 the party can or cannot write." Eng. and Sc. Law, § 668, n. As 
 
 Per Patteson, J. "It is sufficient to the meaning of "attest" and 
 
 if the mark is made and the Will " subscribe, " read Lord Campbell's 
 
 is attested." Per Lord Denman, Judgment in Eobertsr. Phillips, 4 
 
 C. J. A testator's ability to write, E. & B. 450 ; 24 L. J. Q. B. 171. 
 
 when his mark appears in place of Eeferred to again, post, p. 324. 
 
314 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Publication 
 of Wills 
 abolished. 
 
 No attestation 
 clause re- 
 quired by the 
 law. 
 
 Practice of 
 the Court of 
 Probate where 
 no attestation 
 clause. 
 
 the testator sign his name, or hearing him acknowledge 
 the signature or mark, made by himself or written on his 
 behalf. Further, these attesting witnesses must sign their 
 names or make their marks (/) — which will suffice, even 
 if they can write, provided that what they do is done 
 anvmo testandi (g) — after the testator has done so {h), in 
 his presence ; and they should also sign or mark in the 
 presence of each other, though this has been intimated, 
 and actually held, not to be necessary for compliance 
 with the Wills Act, 1838, sect. 9 (i). 
 
 No publication of any Will, beyond that involved in its 
 due execution is now necessary {Jc). Publication was the 
 formal declaration which, before the Wills Act, 1838, a 
 testator made at the time of executing a Will — of realty-^ 
 that the document was his last Will and Testament. 
 
 Nor is any attestation clause of any description what- 
 ever required under the Wills Act, 1838 (Z) ; but notwith- 
 standing that such is the case, testators should take care 
 to insert a proper attestation clause in their Wills, other- 
 wise trouble and confusion may possibly arise, as will now 
 be seen. 
 
 If there is no attestation clause, or one of an imperfect 
 character, the Registrars of the High Court of Justice (Pro- 
 bate Division), require proof by affidavit from at least one 
 of the attesting witnesses, that the execution of the Will 
 was in accordance with the provisions of the WiUs Act, 
 
 (/) In the goods of Ashmore, 3 
 Curt. 766. In this case a testa- 
 trix requested the witnesses to her 
 Will to make their marks, which 
 they did, and then she wrote their 
 names opposite their respective 
 marks. One of the surnames thus 
 written was a wrong one, but the 
 Court granted probate of the Will. 
 See also Mindmarsh v. Charlton, 8 
 H. L. 160. 
 
 (g) In the goods of Enyon, 42 
 L. J. P. & M. 52. 
 
 (A) Coopers. Bockett, 3 Curt. 648, 
 659 ; 4 Moo. P. C. C. 419 ; Hind- 
 
 Tnarsh y. Charlton, supra. 
 
 (i) Cocker v. Bockett, judgment ; 
 In the goods of Well, Dea. & Sw, 1. 
 The ordinary attestation clause of a 
 Will, however, is so worded as appa- 
 rently to assume that this view is 
 not a sound one. Read Casement 
 y. Fulton, 5 Moo. P. C. 130. 
 
 (Tc) 1 Tict. u. 26, s. 13. See also 
 1 Wms. Exors. pt. 1, bk. 2, ». 2, § 2, 
 89, n. (2). 
 
 (I) Sect. 9. Bryan v. White, 2 
 Rob. Ecc. Rep. 315 ; Soierts v. 
 FMllips, ante, n. (e). 
 
THE DUE EXECUTION OP A WILL. 315 
 
 1838, and its Amendment Act, 1852 (m), and the affidavit 
 must be engrossed and form part of the probate (n). 
 
 " If the attestation clause of a Will be imperfect, but a Imperfect 
 codicil thereto has been subsequently executed, containing °*"^^- 
 a perfect attestation clause, no affidavit is required as to 
 the due execution of the Will " (o). 
 
 Should the validity of a Will be disputed on the ground Where wit- 
 of irregular attestation and subsci-iption, and one or both deaT^&o? 
 witnesses are dead, or have left the country, or have ab- 
 sconded, or have been applied to, and refused to make the 
 required affidavit, or are lunatic or imbecile, or are unable 
 to remember attesting the testator's signature to his Will, 
 the Court, on evidence of the fact, will dispense with proof 
 of due execution and presume it {p). This is where the 
 Will contains a proper attestation clause, but even in such 
 case the presumption of due execution is rebuttable {q). 
 
 Although it is true that an attestation clause is not 'Wty an attea- 
 absolutely necessary to the validity of a Will, yet the im- should be iu- 
 portance of a Will containing one may be seen from the ^-^^ ™ ^ 
 following remarks on this subject of an eminent Judge of 
 the former Court of Probate. He says : — 
 
 " I agree . . . that the presumption omnia ritl esse 
 acta applies with more or less force according to the cir- 
 cumstances of each case. Where there is a regular 
 attestation clause with the names of two persons appended 
 thereto, leading to the conclusion that the Will was 
 executed by a person who knew the requirements of the 
 Wills Act, 1838, the principle applies directly, and it 
 may be presumed that the Will was duly executed, and 
 the mere failure of memory of the witnesses will go for 
 
 nothing. But where there is an informal attestation Informal attes- 
 tation clause. 
 
 (wi) 15 & 16 Vict. c. 24. 10 ; 34 L. J. P. & M. 44. As to 
 
 (n) No. 4 of the Non-Contentious witnesses not recollecting the cir- 
 
 Rules of the Court of Probate. cumstances where the attestation 
 
 (o) Coote (by Tristram), 56. clause is informal, see In the goods 
 
 ( p) Id. et seq. Read also Dr. of Bees, 34 L. J. P. & M. 66 ; where 
 
 Lushington's Judgt. in Burgoyne v. no clause at all. In the goods of 
 
 Showier, 1 Eob. Ecc. Rep. 5. Thomas, 1 Sw. & Tr. 255 ; 28 L. J. 
 
 (g) Croft V. Croft, 4 Sw. & Tr. P. & M. 33. 
 
316 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Where name 
 of testator in 
 attestation 
 clause is a 
 signature of 
 Will. 
 
 Form of 
 clause. 
 
 Meaning of 
 ■word "attest." 
 
 "Subscribe." 
 
 clause, such as that in the present case, which does not 
 lead to the conclusion that the testatrix knew the require- 
 ments of the Wills Act, the presumption will not apply 
 with the same force." {Per Sir J. P. Wilde, J. 0.) 
 
 The same learned Judge also stated in the same judg- 
 ment that the Court " should be very cautious indeed in 
 pronouncing against a Will when the signature of the 
 testator is amply proved, and it is also proved- that the 
 persons who put their names as witnesses were sum- 
 moned for the purpose of witnessing a Will" (r). 
 
 Again, where a proper attestation clause is written by 
 the testator himself, read over by him to the witnesses 
 before they subscribe their names, his name so written has 
 been held a sufficient signature of the Will (s). 
 
 The following is a form of attestation clause : — 
 
 " Signed by the testator as his last Will Ipr signed by 
 A. B. in the presence and by direction of the testator, or 
 signed by the testator, who acknowledged his signature], 
 in the presence of us present at the same time, who, in his 
 sight and presence, and in the presence of each other, 
 have at his request attested and subscribed the same." 
 
 "Attest means that persons shall be present and see 
 what passes, and shall, when required, bear witness to the 
 facts" (t). (Per Dr. Lushington.) 
 
 As to the meaning of the words attest and subscribe, when 
 used with reference to the act of a witness to a Will, we 
 again direct the reader's attention to the judgment of 
 Lord Campbell, C. J., in Roberts v. Phillips (^^), where it 
 was held that subscription, according to the meaning of 
 the Legislature, would be effected if the witnesses who saw 
 the Will executed by the testator, were to immediately 
 
 {r) Vinnicombe v. Butler, 3 Sw. 
 & Tr. 580 ; 34 L. J. P. & M. 18. 
 
 (s) In the goods of Walker, 2 Sw. 
 & Tr. 354; 31 L. J. P. & M. 62. 
 But see In the goods of Mann, 28 
 L. J. P. & M. 19; also In the goods 
 efCasmore, L. E. 1 P. & B. 653 ; 
 38 L. J. P. &M. 54 ; In the goods of 
 
 Fearn, 45 L. J. P. D. & A. 31 ; and 
 15 & 16 Vict. c. 24, s. 1. 
 
 (t) In Bryan v. White, ante, p. 
 314, n. (1), and see Griffiths v. 
 Griffiths, L. R. 2 P. & D. 300 ; 41 
 L. J. P. & M. 14. 
 
 (u) Ante, p. 313, n. (e). 
 
THE DUE EXECUTION OP A WILL. 317 
 
 sigu their names on any part of it at his request with the 
 intention of subscribing it. 
 
 In the execution of Wills as well as of deeds, the maxim Maxim. 
 non quod dictum, sed quod factum est, ivispicitur, wUl 
 hold good. 
 
 A testator must make or acknowledge his signature, Explanations 
 mark, or stamp, in the presence of the witnesses, and ' 
 
 ialthough publication is abolished (v), he should — not as a 
 matter of absolute legal necessity, hnt as a proper precaution 
 — also explain to them the nature of the instrument they 
 are required to sign, and the object with which their names 
 are to be written. (See post, p. 820.) 
 
 The following is a leading case on the subject (w) : — Leading case 
 
 A deceased testator requested two persons, present at °J ■^'"^ ^• 
 the same time, " to sign a paper for him," which they did 
 in his presence : the paper was so folded that the witnesses 
 did not see any writing whatever on it. The testator did 
 not state what was the nature of the paper in question. On 
 his death it was found to be his intended Will. Sir H. 
 J. Fust, the Judge of the Prerogative Court of Canter- 
 bury, decided that the document was not a Will, and, 
 therefore, not entitled to probate. The provisions of the 
 Wills Act, 1838 (x), he held, had not been complied with, 
 and the learned judge decreed administration. This de- 
 cision was unanimously upheld on the 21st February, 
 1844, by the Judicial Committee of the Privy Council (y), 
 the members present being all judges of the very highest 
 eminence. As the Court did little more than confirm 
 the sentence of the Court below, the grounds upon which 
 they did so must be looked for ia the judgment of Sir H. 
 J. Fust (z), from which we are able to glean the following 
 important points.: — 
 
 1. That a testator must acknowledge his signature, 
 mark, or impression by stamp, to the persons whom he 
 asks to be the witnesses of his signature. 
 
 {v) Ante, p. 314, n. (Jc). See (x) Sect. 9. 
 
 Kdgwin v. Keigwim, 3 Curt. 607. {y) i Moo. P. C. 265. 
 
 (w) IloU V. Oenge, 3 Curt. 160. (z) Ante, n. (w). 
 
318 
 
 WILLS OF PERSONAL PKOPERTY, 
 
 Testator must 
 know and 
 approve the 
 contents of 
 hisWiU. 
 
 OwiUim V. 
 GwiUim. 
 
 Leaning of tlie 
 Court is in 
 favour of 
 
 wm. 
 
 2. The ■witnesses must either see the testator sign, or 
 see the signature which he has written. 
 
 3. The Statute of 1838 requires a testator's signature, 
 Twt his Will, to be attested (a). 
 
 4. That if a testator produce a Will having his signa- 
 ture attached thereto, if he acknowledge it and request 
 the witnesses to attest it, that would he a suflScient exe- 
 cution within the Act. 
 
 5. That the best course for a testator to adopt is to 
 acknowledge both the Will and the signature, if previously 
 affixed, explaining that the document is his Will (6). 
 
 It is essential to the validity of a Will that a testator, 
 at the time of its execution, should know and approve its 
 contents (c) ; but this will be assumed where it can be 
 shown that the testator was of sound mind, and had read, 
 or heard the Will read over before signing it. (See Atter 
 V. Aiki/nson (c).) 
 
 A later case than Ilott v. Genge is that of Owillvni v. 
 Gwillim {d), a great authority in questions concerning a 
 testator's signature and the acknowledgment thereof (e). 
 " The doctrine in GwilUm v. Gwillim is this — ^that if the 
 testator produces a paper, and gives the witnesses to under- 
 stand it is his WUl, and gets them to sign their names, 
 that amounts to an acknowledgment of his signature, if 
 the Court is satisfied that the signature of the testator 
 was on the Will at the ti/me " (/). 
 
 The Court in deciding cases of this character will look 
 at all their circumstances and' the evidence offered, and as 
 
 (a) Jarman on Wills, quoted by 
 Sir H. J. Fust. 
 
 (b) 1 Vict. c. 26, s. 9 ; see also 
 In the goods of Harrison, 2 Curt. 
 863, and Faulds v. Jackson, 6 N. 
 C. Suppl. 1. 
 
 (c) Hastilow V. Siobie, L. R. 1 
 P. & D. 64 ; 35 L. J. P. & M. 18 ; 
 Cleare v. Cleare, L. R. 1 P. & D. 
 655 ; 38 L. J. P. & M. 81 ; AUer v. 
 Atkinson, L. R. 1 P. & D. 665 ; 
 
 Morritt v. Douglas, L. R. 3 P. & D. 
 1 ; 42 L. J. P & M. 10. 
 
 {d} 3 Sw. & Tr. 200 ; 29 L. J. P. 
 M. & A. 31. , 
 
 (e) Pearson r. Pearson, L. R. 2 
 P. & D. 451 ; 40 L. J. P. & M. 63 
 (Judgt. of Lord Penzance). 
 
 ( /) See Beclcett v. Bovx, 39 L, 
 J. P. & M. 1 ; 2 L. R. P. & D. 1. 
 Judgt. But read Pearson v. Pear- 
 son, supra. 
 
THE DUE EXECUTION OE A WILL. 319 
 
 its leaning is always in support of a Will, it lays hold of any 
 fact from which an inference maybe fairly drawn that thetes- 
 tator's signature was on the paper tendered to the witnesses 
 as his Will, or was acknowledged by them ; and it has been 
 held that an express acknowledgment is not necessary (g). 
 
 In a still more recent case (h), Beckett v. Howe was fol- Goods of 
 lowed by the learned judge who is now President of the "'"*"'"^" 
 Probate, Divorce, and Admiralty Division of the High Court 
 of Justice. In the course of his judgment, his lordship said 
 that — '' If a paper be produced, and nothing be said about 
 it, and the witnesses do not see the signature of the tes- 
 tator, that would not, in my opinion, be a sufficient ac- 
 knowledgment ; but if it be proved, as it is proved in this 
 case to my satisfaction, that the signature was in fact there, 
 and if the witnesses are informed that it is the Will of the 
 testator that they are requested to witness, I think that 
 that is a sufficient acknowledgment of the signature." 
 
 In the case in question, the witnesses deposed that the Pacts on 
 testatrix had produced the paper, saying to them, " This q^^ foimded 
 is my Will, and I wish you to be witnesses," but they had its decision, 
 not seen her name thereon at the time. Sir J. Hannen, 
 however, weighing the probabilities of the case, and look- 
 ing at the Will itself, which appeared to have been all 
 written at one time, considered the paper to have been 
 duly executed. The Will here was a holograph document ; 
 had it not been so, the decision of the learned judge 
 might not have been so easily arrived at, since the main 
 fact upon which his lordship relied, was the similarity of 
 the writing throughout the paper. Accordingly, it should Advice to 
 be borne in mind, notwithstanding this and other decisions ^^ * "^^^ 
 apparently favourable to careless and ignorant testators, 
 that the proper course is either to sign tlie WiU in the 
 presence of the witnesses, fii'st stating that the paper is a 
 Will, or else, if the signature has been previously affixed, 
 to show it to the witnesses, acknowledge that it is his 
 signature, and that the paper is a Will. 
 
 (g) Ante, p. 318, n. (e) ; and read {h) In the goods of Janaway, 44 L. 
 Ll(y^A V. UoberU, 12 Moo. P.O. 158. J. P. & M. 6. 
 
320 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Positive evi- 
 dence not 
 essential. 
 
 Practice where 
 witnesses not 
 confirmed by 
 res gestae. 
 
 Express ac- 
 knowledgment 
 by testator 
 not required ; 
 
 but merelyask- 
 ing witnesses 
 to see testator 
 sign a paper, 
 without stating 
 its nature. 
 
 Testator's 
 name in 
 attestation 
 clause. 
 
 The case of BecJcett v. Howe also maintains the principle 
 followed by Sir J. Hannen in The goods of Janaway, 
 that the Court may, independently of positive evidevAie, 
 investigate the circumstances of a case, and form its own 
 opinion as to whether the testator's signature was on the 
 Will at the time of execution, and if satisfied that it was, 
 consider execution in such case good. The evidence 
 required for this purpose, we may observe, need not neces- 
 sarily be direct, for " where the res gestae do not confirm 
 the witnesses, the Court must look at the circumstances of 
 the case, as it is always at liberty to do " Qi). 
 
 From what has been said, it will be perceived that an 
 express acknowledgment of his signature by a testator is 
 not necessary; and this has been so held (i). The rule now 
 is that, if his signature or mark actually be on the document 
 which he calls his WiU when he asks the witnesses to sign, 
 such fact shall amount to a virtual acknowledgment of 
 such signature or mark; but "the mere circumstance 
 of calling in witnesses to sign, without giving them any 
 explanation of the instrument they are signing, does not 
 amount to an acknowledgment of the signature of a tes- 
 tator "(i). {Pev Lord Penzance.) 
 
 When a testator's name, written by himself, appears in 
 the attestation clause of the Will, and is the only signature 
 thereto, this has been held sufficient to satisfy the rule 
 declared in Qwillvm v. Gwillim, viz., that where a Will 
 appears on the face of it to have been duly executed, and 
 the atte.sting witnesses are unable to say whether or not 
 the testator had signed it when they subscribed their 
 names, the Court is at liberty to infer from the circum- 
 stances of the case whether or not the testator had pre- 
 viously signed (k). 
 
 iji) Per Sir H. J. Fust in Oopper 
 v. Bockett, 3 Curt. 663; affirmed 
 4 Moo. P. C. C. 419 ; Gvnllim v. 
 Gwillim, 3 Sw. k Tr. 200 ; 29 L. J. 
 P. & M. 31. 
 
 (i) Pearson v. Pewrson, ante, p. 
 
 318, note (e). 
 
 (j) See also Ilott v. Ge-nge, 4 
 Moo. P. C. 265. 
 
 Qc) In the goous of Walker, 2 Sw. 
 & Tr. 354 ; 31 L. J. P. & M. 62. 
 
THE DUE EXECUTION OF A WILL. 331 
 
 We therefore repeat, even though the observation Summary, 
 may appear redundant, that in all cases it is absolutely- 
 necessary that the testator should sign his name or make 
 his mark (I) before the witnesses subscribe their attesta- 
 tion (tti), and the Court has no power to deviate from this 
 rule under any circumstances, to give effect to a Will not 
 so executed. 
 
 In a case where the witnesses merely held the top of the Witnesses may 
 pen, while another person wrote their names, the Court te'stato'rVpen. 
 decided that the Will was thus duly attested (n). 
 
 An attesting witness must himself subscribe the Will in Name of 
 some way or other, his own Tiame not being essential, as ™*°«^ "o* 
 the intention to attest the testator's signature is what the 
 Court will look at ; and any mark intended by a witness to 
 indicate attestation will be sufficient (o). 
 
 A testator may sign by making a mark, or by a stamp Testator may 
 engraved with his signature, and this may be used for the ^^^J^^^^' 
 purpose by another person, if done in the testator's pre- _orby 
 sense, and by his direction (p). another pereon. 
 
 It is a rule of the Probate Division of the H. C. J. Presumption 
 that in matters relating to the execution of Wills, the 'Z!'^,'?^ 
 presumption omnia rite esse acta applies with more or 
 less force to each case according to its circumstances (5). 
 Notwithstanding such or any other presumption, how- 
 ever, the precise and simple requirements of the Wills 
 Act (r), and its Amendment Act (r), should, as read by 
 the light of the cases, be complied with. 
 
 The Wills Act, 1838, declared that the signature of the Place of tes- 
 testator must be at the foot or end of the Will ; but, as ^■J'l ^ ^'^^ 
 
 (l) In the goods of Dome, 2 Sw. L. J. P. & M. 24 ; Charltojiv. Bind- 
 & Tr. 593 ; 31 L. J. P. & M. 172. * marsh, 8 H. L. Gas. 160 ; In ike 
 
 (m) 1 Vict. c. 26, s. 9 ; Oharlton goods of Enyon, L.R. P. & D. ; 4L. 
 
 V. HindmarsJi, 8 H. L. 160 ; In the J. P. & M. 52. 
 
 goods of Buchxiale, 36 L. J. P. & (p) Jenkins ox Jenhyns'v.Gaisford, 
 
 M. 84. See &iso Piseher -v. Pophom, 2 Sw. & Tr. 93. 
 
 44 L. J., P. & M. ■ ' (q) Vinnicombe v. Butler, 3 Sw. 
 
 (n) In the goods of Levns, 2 Sw. & Tr. 580 ; 34 L. J. P. & M. 18. 
 
 & Tr. 153 ; 31 L. J. P. & M. 153. {r) 15 & 16 Vict. c. 24. 
 
 (0) In the goods of Duggins, 38 
 
323 
 
 WILLS OF PERSONAL PROPERTY. 
 
 WiU. 
 
 Blank spaces 
 in Wais. 
 
 Writing after 
 signature and 
 attestation. 
 
 remarked by Mr. Joshua Williams (s), " some very careless 
 testators, and very clever judges soon contrived to throw 
 upon this clause of the Act a discredit which it does not 
 deserve." Accordingly, an amending sta/'.ute just referred 
 to (t), was called into existence — a singular legislative 
 lucubration, enumerating with laborious precision all the 
 points of a document which may be respectively considered 
 its foot or end. But, notwithstanding this elaborate guide 
 for the testator, he will do well to take the course which 
 common sense points out as the obviously correct one, 
 namely, to place his signature as near as possible to the 
 conclusion of the Will ; to write nothing after his sig- 
 nature, for the Court cannot give effect to any unattested 
 writing below or after the testator's signature, which 
 forms no part of the WiU (u). He should be particularly 
 careful to leave no wide blank before his name, since 
 " the fraud to which the* Will lays itself open might be 
 a reason for holding it void (v)," as the object of the space 
 would probably be to enable the testatbr to add words to 
 his Will after its execution. 
 
 The Wills Act Amendment Act, 1852, sect. 1, states, 
 however, that no Will, otherwise duly executed shall be 
 affected by the circumstance that the signature does not 
 appear immediately after the foot or end of the Will, or 
 that a blank space shall intervene between the concluding 
 word of the Will and the signature ; and it has been held 
 that blank spaces occurring in a Will do not necessarily 
 invalidate the document ; but the protection which the 
 Act purports to afford in the matters with which it deals 
 is apparently of a somewhat uncertain character, and will 
 depend on the circuriistances of each case. 
 
 •If, then, a testator wishes to add anything to his Will 
 
 (s) Wms. R. P. 187. It is right 
 to add that by the terms of the 
 statute the enumeration of the cij- 
 eumstances therein mentioned is 
 not to "restrict the generality of 
 the enactment." 
 
 (t) 15 & 16 Vict. c. 24. An im- 
 _ portant case illustrating this Act is 
 
 In the goods of Sorsford, L. E. 3 P. 
 & D. 211 ; 44 L. J. P. & M. 9. 
 
 (m) In the goods of Woods, L. 11. 
 1 P. &D, 556; 37 L. J. P. &M. 23. 
 
 (v) Wms. E. P. 189. But see 
 Sunt V. Hwnt, L. E. 1 P. & M. 
 209 ; 35 L. J. P. & M. 135. 
 
THE DUE EXECUTION OP A WILL. 323 
 
 after his signature and the subscription of the witnesses, 
 what he appends will be of no avail, unless the writing be 
 signed and attested precisely as the Will itself was, ex- 
 cepting that, of course, he is not bound to have the same 
 attesting witnesses to the new matter (w). 
 
 Any person may be a witness to the 'execution of a ^° ™*y ^^ 
 
 WltllGSSCS to 
 
 Will, even a felon or lunatic ; but it is obviously absurd to a WilL 
 
 suppose that lunatics, imbeciles, children, or habitual 
 
 drunkards can really be regarded as capable witnesses in 
 
 the ordinary sense of the word, and to do so " would be a 
 
 mere mockery." But by the Wills Act, 1838, sect. 14, it is 
 
 enacted, that " if any person who shall attest the execution 
 
 of a Will, shall, at the time of the execution thereof, or 
 
 at any time afterwards, be incompetent to be admitted a 
 
 witness to prove the execution thereof, such Will shall not 
 
 on that account be invalid (a;)." Now, since the passing of ^''^^".''y °} 
 
 ^ ' ' r o the legislature 
 
 the Wills Act, 1838, the legislature has made great alter- to admit wit- 
 ations in that portion of the law of evidence which deals ^^^^ " *°^ 
 with the competency of witnesses. For instance, the Act 
 6 & 7 Vict. c. 85, abolished the previously existing inca- 
 pacity arising by crime or interest ; and then came an- 
 other statute, the 14 & 15 Vict. c. 99, sect. 8, making all 
 the parties^except the husband or wife of any parties 
 — in any civil suit capable of giving evidence, unless in 
 cases of adultery and actions for breach of promise of 
 marriage. The next Act, 16 & 17 Vict. c. 83, made a wife 
 generally competent to give evidence against her husband 
 except in cases of adultery, and now, under 32 & 33 Vict, 
 c. 68, parties to actions for breach of promise of marriage, 
 to proceedings in the Divorce Court, and the husbands 
 and wives of such parties are competent to give evidence 
 in such proceedings. 
 
 The same statute, which is known as " The Evidence Deohraticn in 
 
 placs 01 oatu. 
 Further Amendment Act, 1869," makes it allowable for 
 
 any person in any court, and in all cases, whether civil or 
 
 (w) 15 & 16 Viot. 0. 24, s. 1 ; and. of Arthur, L. E. 2 P. & D. 273. 
 see e.g.. In the goods of Ainsworth, (x) Corneiy v. Gibbons, 1 Kob. 
 
 L. K. 2 P. & D. 151 ; In tU goods Ecc. Eep. 705 ; 6 K C. 679. 
 
 T 2 
 
824 
 
 WILLS OF PERSONAL PEOPBETY. 
 
 Infamy, in- 
 terest, and 
 irreligion, do 
 not incapaci- 
 tate a witness. 
 
 Caution to 
 testators as to 
 their wit- 
 
 most both 
 attest and 
 subscribe. 
 
 Witnesses 
 should see 
 testator sign, 
 and he them. 
 
 criminal, to make a declaration, instead of taking an oath, 
 when it is thought by the judge that the latter would have 
 no binding effect on the conscience of the witness. - 
 
 Thus it is seen that infamy, interest, and non-profession 
 of religion are no longer drawbacks to the admissibility 
 of testimony offered by a witness ; the value of such 
 testimony is, of course, another matter, with which we 
 have here nothing to do ; but there can be little doubt, 
 that the discovery of truth in Courts of Justice has been 
 signally promoted by the removal of restrictions on the 
 admissibility of witnesses, and so allowing the greatest 
 possible amount of light to be thrown upon cases requiring 
 investigation. 
 
 Notwithstanding, however, the latitude allowed to tes- 
 tators by the law, with regard to the quality of their tes- 
 tamentary witnesses, it need hardly be stated that they 
 should choose these persons with due caution, taking care to 
 secure, if possible, men of middle life, of good mental and 
 bodily health, respectability, and education {y). 
 
 Both attestation and subscription by the witnesses are 
 necessary {£), and both of these formalties should be per- 
 formed by them in the presence of each other, in that of 
 the testator, and with his knowledge (a) ; and their attes- 
 tation and subscription must be for the purpose, and with 
 the intention of witnessing the testator's signature (&). 
 
 The requisition of the Wills' Act, 1838, that a Will 
 shall be subscribed by the witnesses, is complied with, by 
 those who saw it executed by the testator immediately 
 signing their names on any part of the Will, at his 
 request, with the intention of attesting it (c). 
 
 The witnesses should, if possible — though, as we have 
 
 (i/) In the goods of Lee, 4 Jur. 
 (N. S.)790. 
 
 (z) Hudson v. ParJcer, 1 Eob. 
 li ; In the goods of Duggins, 39 L. 
 J. P. & M. 24. 
 
 (a) Hindmarsh v. Charlton, 8 
 H. L. 160 ; Croft v. Croft, i Sw. & 
 Tr. ,10 ; 34 L. J. P. & M. 44. 
 
 [l) In the goods of Wilsm, 36 L. 
 J. P. & M. 1. 
 
 (c) Roberts v. Phillips, 4 E. & B. 
 450 ; 24 L. J. Q. B. 171. W.B. One 
 ■witness cannot subscribe for the 
 other. See In the goods of Middletan, 
 3 Sw. & Tr. 583 ; 33 L. J., P. & M. 
 16. 
 
THE DUE EXECUTION OF A WILL. ^25 
 
 stated, this is not absolutely necessary — actually see the 
 testator sign his Will, knowing that it is his Will, and he 
 should see them subscribe their signature as witnesses (d), 
 although it has been held that the possibility of a testator 
 having seen a witness sign is sufficient (e). 
 
 " It has been held in several cases in the Ecclesiastical Witnesses may 
 Court that it matters not,> under 1 Vict. c. 26, in what part part ofwm. 
 of the Will the attesting witnesses sign, provided it 
 appears that their signatures were meant to attest the 
 requisite signature of the testator (/)." 
 
 The witnesses must not sign their names before the tes- O'^der of 
 
 tator has signed his ; but the actual order in which the ^'^^ "^^" 
 
 names appear on the Will is immaterial (gr) ; the regular 
 
 course, however, is for the testator's signature to appear, 
 
 and to be written first, and then those of the witnesses. 
 
 If the signature of the testator and the attesting wit- Separate 
 . . „ , papers, 
 
 nesses are written on separate pieces of papei', and 
 
 fastened together, or to the foot of the Will, when he 
 
 acknowledges his signature, it is sufficient Qi). 
 
 Witnesses, when there is an attestation clause, should Witnesses 
 subscribe their names or make their mark simply as such, fions'to their 
 and need not put any additions thereto to indicate in what names. • 
 
 capacity they sign ; but, in a case where a witness wrote 
 " servant to Mr. S.," instead of writing his name, this was 
 held to be a sufficient subscription, on the ground that the 
 person in question had imtended to witness the testator's 
 signature {%). 
 
 The doctrine of the Court of Probate on this point may Doctrine of the 
 
 Court on the 
 
 (d) Tribe v. Tribe, 1 Rob. 775 ; whether a witness has attested a P"™*- 
 
 In the goods o/KUlick, 3 Sw. & T# Will, the position of the signature is 
 
 578 ; 34 L. J. P. & M. 2 ; In the most material." This particular 
 
 goods of Huchvale, L. R. 1 P. & D. case, however, was one of an ex- 
 
 375 ; 36 L. J. P. & M. 84. tremely peculiar character. 
 
 (c) In the goods of Trinmell, 11 (g) In the goods of Soskins, 32 
 
 Jur. (N. S.) 248. Judgt. of Sir J. L. J. P. & M. 168 ; In the goods of 
 
 P. Wilde. Piiddephatt, L. R. 2 P. & D. 97. 
 
 (/) 1 Wms. Exors. pt. 1, bk. 2, (A) Cook v. Lambert, 3 Sw. & Tr. 
 
 ch. 2, sect. 2, 96. But read In the 46 ; 32 L. J. P. & M. 93 ; ante, p. 
 
 goods of Wilson, L. R. 1 P & D. 822 n. (<), In the goods of fforsford. 
 
 269; 36 L. J., P. & M. 1, where Sir (i) In the goods of Sperling, 3 
 
 J. P. Wilde says:— "In considering Sw. & Tr. 272; 33 L. J. P. &M. 25. 
 
326 
 
 WILLS OP PERSONAL PEOPEETY. 
 
 No formal 
 attestatiou 
 
 "Attest" and 
 "subscribe." 
 
 be gathered from a perusal of the case cited below (/c), ia 
 which the following Will was propounded : — 
 
 " This is to certify that I, A. B., of C, do leave all my 
 properties and moneys belonging to me, A. B., to my be- 
 loved wife, E. F., and, at her death, to my daughter, G. F. 
 "Signed, X. (Testator's mark).; 
 "Executors, F.H. 
 K. L. 
 « Witness, M. N." 
 
 The first question here was whether the Will was duly 
 executed, and thereon Lord Penzance said : — " There 
 was no formal attestation clause. On the one side it was 
 contended that the Will was duly executed, because it 
 was signed by the deceased, in the presence of two per- 
 sons, who afterwards signed it in his presence. On the 
 other side, it was contended that one of those persons 
 signed only as an executor, and not as a witness, and, 
 therefore, that the Will was not duly executed. I think 
 that the matter resolves itself into a question of fact. I 
 took time to see if I could find any case bearing on the 
 question whether it is necessary that a person should sign 
 as a witness. I think the meaning of the provision in 
 the Wills' Act, that a person ' shall attest and subscribe 
 the Will' is, that he should sign the Will by way of 
 attesting the fact that he has seen the testator sign it. I 
 do not find any case bearing directly on the point." 
 
 The next question was, did F. H. sign as a witness ? 
 
 The following were the points elicited in cross-examina- 
 tion, and on which the Court relied, to come to the con- 
 clusion that he did so sign : — 
 
 M, N. {cross-examined). After the testator signed he 
 gave the Will to F. H., and told him to sign, which 
 he did. 
 
 The Court. That would be frvmd facie evidence that 
 F. H. signed as a witness. 
 
 (i) Griffiths V. Griffiths, L E. 2 P. & D, 300 ; 41 L, J. P, & M. 14, 
 
THE DUE EXECUTION OF A WILL. 327 
 
 M. N. Testator told F. H. he wished him to act as 
 
 executor. 
 The Coukt. It may be that F. H. signed to show his 
 
 consent to be executor, and also as a witness. 
 F. H. (cross-examined). I did not write the word 
 "executors" until after the testator had put his 
 mark. He told me to sign as executor. I did 
 sign, so did M. N. I understood that I was 
 appointed an executoi-. He asked me to sign. I 
 did so, as executor. 
 Re-examimed. The testator did not say " sign as exe- 
 cutor." I do not recollect that he used the word 
 "executor" before I signed. 
 On this evidence the Court concluded " that F. H. did Intention of 
 not sign exclusively as an executor, but, by his signature J^^ed.'^'"^' 
 meant to certify that he had seen the testator sign his 
 name," and, accordingly, the Court granted probate of the 
 Will. 
 
 In the perusal of this case, besides the point deter- TheProtate 
 mined, we are able to perceive the leaning of the Court ports a Will 
 
 towards a liberal construction of its own rule, as to the '^J>ere pos- 
 sible. 
 presumption being against an imperfect paper (I) ; also that 
 
 the Court will, when at all possible, give effect to the in- 
 tention of a testator, by supporting his Will, and carry 
 out, where it can do so, the dispositions of all persons, 
 whether illiterate, unskilled, or otherwise. 
 
 This brings us to consider whether an executor may be Executor may 
 a good witness to prove the execution of a Will. The prove execu- 
 Wills Act, 1838, declares that he may be a witness to *'°?' ,f<=-' °^ . 
 prove the execution of a Will, and also to prove its 
 validity or invalidity (m). If a Will be duly attested by Supernumerary 
 two witnesses, and then one or bpth of the executors sign ^g^uaMed." 
 also, such a proceeding would, it is presumed, not render 
 invalid any disposition in the Will, as the signature would 
 be simply an unnecessary addition. In the case of a 
 
 (I) Forbes v. Oordon, 3 PMll. (m) 1 Vict. c. 26, s. 17. And see 
 
 28 ; Judgt. of Sir J. Niolioll, PUppsY.Pitc.Ur,l'il[.aA.ii.lii (1815). 
 
328 
 
 WILLS OF PERSONAL PKOPERTY. 
 
 Witness of a 
 WiU can take 
 nothing by it. 
 
 Effect of 
 legatee signing 
 as a witness. 
 
 legatee who had signed her name after the attesting wit- 
 nesses, the Court held that, as the execution of the Will 
 was complete before she signed, she had not forfeited her 
 legacy (n), as she would have done had she been both a 
 witness and a nominated legatee (o). 
 
 It is to be carefully remembered, as we have seen, that 
 no person who attests the execution of a Will or codicil 
 can take any legacy, gift, or individ/iially beneficial in- 
 terest whatever under it, nor can the husband or wife of a 
 witness. For the legacy to a witness is utterly null and 
 void, both as regards such person attesting the execution 
 of the Will, or the witness's, wife, or husband, or any per- 
 son claiming under them ; but such person will, never- 
 theless, stand good as a witness to prove the execution or 
 validity of the Will, although the legacy, &c., is void (p). 
 
 We see from this that if a nominated legatee sign as a 
 witness, the effect produced is the loss of his legacy. 
 Formerly, the whole Will, if of realty, Would have been 
 invalidated by such an irregularity ; but the legislature, to 
 remedy so palpable a blot in the law, passed an Act by 
 which it was provided that, in these cases, the gifts merely 
 should be void, and leaving the witnesses competent {q) 
 Sir John NichoU decided that the Act in question, in point 
 of true construction, was limited to Wills and codicils of 
 real estate ; accordingly, he held that a legacy, &c., to a 
 subscribing witness to a Will or codicil of personalty was 
 good, and recoverable at law (r), and the decision was 
 iipheld by the High Court of Delegates. But now, we 
 repeat, devises and legacies to attesting witnesses are 
 
 (m.) Inthe goods of Sharman,'L.'R. 
 1 P. &. D. 661 ; 38 L. J. P. & M. 47. 
 
 (o) It would appear, however, 
 that if the Court were asked to 
 strike out the name of a supernu- 
 merary witness, a legatee, who had 
 signed alone, and before the other 
 two, the Court would not accede to 
 the request, but leave the legatee to 
 bring a suit for the legacy. In the 
 
 goods of Mitchell, 2 Curt. 916. 
 
 (p) 1 Vict. c. 26, s. 15. 
 T. Rowland, 23 L. J. Ch. 69. Ex- 
 ceptional cases are Cresswelly. Cress- 
 well, L. E. 6 Eg. 69 ; 37 L. J. Ch. 
 521 ; Bunny. Dunn, L. E. 1 P. & D. 
 277. 
 
 (?) 25 G. 2, c. 6. 
 
 (r) Brett v. Brett, 3 Ad. Eco. 
 Eep. 210. (1826.) 
 
THE DUE EXECUTION OF A. WILL. 329 
 
 " utterly null and void," although the witnesses themselves 
 are competent to prove the execution, &c., of the Will (s). 
 
 A legatee under a Will may, however, with safety attest A legatee 
 the execution of a codicil which either gives him nothing, may attest its 
 or a legacy or an annuity (t) ; and a legatee under a codicil o°'l"='l> ^<i 
 may,in like circumstances, attest the execution of a Will (u). 
 
 It is to be borne in mind that, although the Act of "Witnessea 
 1838 permits a testator to make his signature, and simply ^^mwiX?'^ 
 acknowledge to the witnesses that it is his, yet the Act their sub- 
 does not say that the witnesses may merely acknowledge ^°"^ '°°' 
 their subscriptions (x) : they must eac/i, subscribe in the tes- 
 tator's presence, though it is not necessary that one must 
 see the other perform the act. 
 
 Neither a Will nor a legacy is void when the legatee Will written 
 writes the Will at the request of a testator, if the contents ^ ^^^ ^' 
 are known to the latter, and there is no fraud (y). 
 
 If a legatee sign his name along with those of the legatee sign- 
 attesting Avitnesses merely to iadicate his acceptance of show that he 
 
 the office of executor, the Probate Division of the H. C. J. accepts execu- 
 torship. 
 Avill not remove his name, so as to allow him to secure the 
 
 legacy to which he would otherwise be entitled. The 
 
 proper time for such a legatee to assert his claim is upon 
 
 a suit [action now] being ""brought for the legacy in the 
 
 Chancery Division (z). 
 
 From this we may deduce the position that no executor 
 to whom a testator leaves a gift in his Will can safely be 
 an attesting witness thereto, even though such gift be to 
 him merely qua executor for his trouble [a), for, though 
 good as a witness, he will, in such case, lose his legacy (a). 
 
 But the Wills Act does not apply to charges and Creditors may 
 directions for the payment of debts ; so that, if a Will be ^l^y^l not 
 
 (s) 1 Vict. c. 26, s. 15. yy) See 3 Phill. 456, n. 
 
 (<) IBariA^S; Oi//rneyv.Gu,rney, («) In, the goods of Mitchell, 2 
 
 3 Drewry, 208 ; 24 L. J. Ch. 656 ; Curt. 916 ; In the goods of Forest, 2 
 
 Tempest v. Tempest, 2 K. & J. 635. Sw. & Tr. 334 ; 31 L. J. P. & M. 200. 
 
 (m) Inderwick on WUls, 75 ; (a) The Judgt. of Sir H. J. Fust. 
 
 Deane on the Wills Act, p. 135. In the goods of Clark, 2 Curt. 330 ; 
 
 (a;) Moore y. King, 3 Curt. 243. but see Ihmn v. Dunn, L. K. 1 P. 
 
 But see ante, p. 314. & D. 277. 
 
 lose debts. 
 
330 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Sammary, 
 
 Witness may 
 make mark. 
 
 Bignmg 
 for testator, 
 
 charged for the payment of creditors, such creditors, their 
 wives or husbands, may safely attest the execution of their 
 debtor's Will, and yet be able to recover their debts, and 
 also may be admitted to prove the validity or invalidity of 
 the Will (b). 
 
 To sum up what has been said, it may be shortly re- 
 marked that no intended legatee of any kind should attest 
 the execution of any testamentary instrument under 
 which he is to take a gift, for though the instrument will 
 in other respects hold good, the gift will be void. 
 
 An executor who receives a present for his trouble is a 
 legatee, and the only persons who may subscribe the tes- 
 tator's signature and take under his Will are- creditors, 
 their wives or husbands (b). 
 
 Witnesses may subscribe by making their mark (c) ; one 
 cannot subscribe for the other. It is obvious that a 
 proper signature is desirable, although under the Wills 
 Act, witnesses are not required to sign their natnes. 
 
 If a person who is requested to sign for an incompetent 
 testator, sign his own name through misapprehension or 
 inadvertence, the Will, notwithstanding the error, is 
 good id) : for "the Wills Act, 1838, allows a Will to be 
 signed for the testator by another person, and it does not 
 say that the Signature must be in the testator's name 
 . . ." (e) In such cases, questions of bona fides, inten- 
 tion and identity, may arise, and, therefore, a witness 
 under these circumstances should be careful to write the 
 testator's name, and, at the same time, indicate the fact of 
 his doing so at the request of the testator, and merely as 
 his agent (/). 
 
 Having considered the requisite formalities to be ob- 
 served in the due execution of testamentary instruments, 
 we come now to inquire concerning their revocation. 
 
 (i) 1 Vict. 0. 26. 3. 16. 
 
 (c) In the goods of Amiss, 2 Eol). 
 Eco. Rep. 116 ; In the goods of 
 mwards, 1 Sw. & Tr. 10. 
 
 {d) In the goods of Clark, 2 Curt. 
 329. 
 
 (e) 1 Vict. c. 26. s. 9. 
 
 (/) In the goods of Marshall, 
 13 L. T. (N.S.) 643. 
 
CHAPTER V. 
 
 OP THE REVOCATION OF WILLS AND CODICILS. 
 
 By the revocation of a Will is meant, generally, the 
 destroying its operative power, wholly or in part (a), by 
 some extrinsic act done in regard to it, or by making 
 a subsequent testamentary paper, with the intention of 
 revoking the previous one. 
 
 As the law now stands (6), a Will, codicil, or any part 
 thereof may be revoked in various ways : — 
 
 1. By a Will or codicil, made whilst another is in 
 existence, and which in terms, direct or implied (c), revokes 
 a former one, that is, so plainly inconsistent therewith 
 that the two papers cannot exist conjointly, so as to form 
 one Will (c). 
 
 2. By some writing, declaring an intention to revoke 
 the same, and executed like a Will (d), but only if the 
 writing be certain in its terms as to the animus re- 
 vocandi (e). 
 
 3. By burning, tearing, or otherwise absolutely de- 
 stroying or mutilating the fabric of the Will, the act being 
 done by the testator himself, or by 'some person in his 
 presence and by his direction, with the intention of 
 revoking the Will (/). 
 
 Meaning 
 of term 
 Revocation. 
 
 Modes of 
 reToking a 
 WiU. 
 
 Subsequent 
 paper incon- 
 sistent witli i 
 former WiU. 
 
 Euming, &c. 
 
 (a) See e.g. Chrisimas v. Wliin- 
 yates, 3 Sw. & Tr. 81 ; 32 L. J. 
 P. & M. 73 ; In the goods of Wood- 
 ward, L. R. P. &D. 206 ; 40 L. J. 
 P. &. M. 17. 
 
 (6) 1 Vict. c. 26, 8. 20. 
 
 (c) Cutto V. CfiUert, 9 Moo. P. 
 C. 131. 
 
 (a!) Note (a) supra, and see In 
 
 the goods of Durance, L. E. 2 P. & 
 D. 406 ; 41 L. J. P. & M. 60. 
 
 (e) In the goods of Fraser, L. E. 
 2 P. & D. 40 ; 39 L. J. P. & M. 
 20. 
 
 (/) Note (a), and see e.g. In the 
 goods of Harris, 3 Sw. &T. E. 485 ; 
 83 L. J. P. & M. 181. 
 
332 
 
 WILLS OF PERSONAL PROPERTY, 
 
 Alterations, 
 &c. 
 
 Act of ademp- 
 tion. 
 
 Marriage. 
 
 Change of 
 executors. 
 
 General rule 
 ■when revoca- • 
 tion of a 
 Will is alleged. 
 
 4. By alterations of any kind, if duly executed, and 
 intended to be revocatory in their operation (g). But 
 obliterations, erasures, cancellations, &c., even if duly 
 executed, are revocatory only as far as they go, that is to 
 say, they affect the parts of the Will to which they refer, 
 and not the whole Will (h). 
 
 5. By any contrary disposition by testator in his life- 
 time of property specifically bequeathed, in which case 
 a revocation of a part of the Will (i) may be effected. 
 
 6. By marriage, in all cases — except one already re- 
 ferred to in the previous chapter, and which wiU be 
 noticed again presently. 
 
 7. The appointment of executors in a subsequent Will, 
 different from those in a former one, may effect a revo- 
 cation thereof, if the testator, in the later paper, indicates 
 that both papers are not to stand together and there be 
 no evidence adduced to show a contrary intention on his 
 part (j). If the papers are quite consistent with each 
 other, both will be entitled to probate as together forming 
 the Will, and probate may go to all the executors (Jc). 
 
 Such is a general statement of the law on this subject ; 
 we will now deal with it more particularly. 
 
 When revocation of a Will by a subsequent instrument 
 is alleged, it is the general rule that there must be in the 
 
 ig) Brooke v. Kent, 3 Moo., P. 
 C. 341 ; 1 Vict. c. 26, s. 21. 
 
 (h) Clarkey. Seripps, 'i'&ob. 563, 
 Judgmt. of Sir J. Dodson ; Lemage 
 Y. Goodban, L. E, 1 P. & D. 57 ; 
 35 L. J. r. & M. 28 ; In the goods 
 of Woodward, supra, n. (a). 
 
 (i) If A. by his "Will bequeathes to 
 B. a specific legacy, say a particular 
 horse or a piece of plate, and 
 during his lifetime sells what he 
 had intended to bequeath or the 
 thing is totally destroyed, or re- 
 moved from where it was at the 
 date of the bequest, this being 
 an ademption of the legacy, the 
 part of his Will containing it is of 
 
 course revoked ; but it is more com- 
 monly said to be adeem,ed. See 
 2 Wms. Exors. pt. 3, bk. 3, ch. 3, 
 1320-1399, and the notes to Asli- 
 iurner v. Macguire, 2 L. C. Eq. 290. 
 
 (j) Plenty v. West, 1 Rob. 204 ; 
 but see JRichards v. The Queen's 
 Proctor, 18 Jur. 540. 
 
 (k) In the goods of Leese, 2 Sw. 
 & Tr. 442 ; 31 L. J. P. & M. 169 ; 
 In the goods of Graham, and Geaves 
 v. Price, 3 Sw. & Tr. 69, 71 ; 32 L. 
 J. P. & M. 113. But see /» the 
 goods of Morgan, L. R. 1 P. & D. 
 322; 36 L. J., P. & M. 64; In the 
 goods of Rotton, 35 L, T. (N. S.)518. 
 
OF THE REVOCATION OF WILLS AND CODICILS. 338 
 
 latter one either an express clause of revocation, or that 
 the papers must be quite inconsistent with — not merely 
 different from — each other, that is -to say, cannot co-exist, 
 so as to form but one Will (l). 
 
 It is also to be borne in mind that there may be cases Probate some- 
 in which even a general revocatory clause in a Will is not *™^^ granted 
 
 ,,. ,. , . 01 a prior 
 
 always to be deemed conclusive as to the revocation of paper where 
 particular legacies and bequests ; for " it has been laid down, reyooatory 
 over and over again, that probate of a paper may be granted clause in a 
 of a date prior to a Will, with a revocatory clause, provided 
 the Court is satisfied that it was not the deceased's 
 intention to revoke the particular legacy or benefit " (m). 
 
 The first report which we have on the subject of revo- Eevocation by 
 cation of Wills is that of Helyar v. Helyar (n), decided -nS^ent of 
 in 1754 by Sir G. Lee, in whose judgment are cited all different 
 the authorities from the Civil Law, as to the revocation of ^"'^° 
 a Will by the execution of a subsequent one. This case 
 decided, among other things, that the execution of a 
 second Will of a different purport from the first, is a re- 
 vocation of the first, though the second may not appear, and 
 this position has been pronounced to be good law by a 
 very high authority (o). Helyar v. Helyar was decided 
 on the ground that the contents of the subsequent Will 
 were wholly different from those of the former oue ; and 
 in all such cases where revocation has been held to be 
 effected, there has been proof of a difference of disposition 
 of the property dealt with (o). 
 
 It is settled law that no Will can be revoked by the Contents of 
 execution of a subsequent one, the contents of which are n^st be 
 wholly unknown, and, against this, there is no authority known, 
 for a contrary proposition (p). 
 
 The words, " this is my last Will and testament," at the Meaning of 
 
 . *' last Will " 
 
 commencement of a document, do not import that the paper &c, ' 
 
 (Z) CiUto V. Gilbert, 9 Moo. P. C. Eco. 52. 
 X31. (n) 1 Lee by PhilKm. 472. 
 
 {m) 6ladst(me-v.Tempest,2G\ast. (o) Dr. Lnshington in Ouiio v. 
 
 650, Judgmt. of Sir H. Jenner ; Gilbert, 9 Moo. P. C. 143 (1854). 
 see also ffughes v. Twine, 4 Hagg. (p) Ibid. 
 
334 
 
 WILLS OP PEESONAL PROPERTY. 
 
 Second papers 
 disposing of 
 all the pro- 
 perty. 
 
 Enle of civil 
 law. 
 
 No revocation 
 by mere 
 presumption, 
 abandon- 
 ment or lapse 
 of time. 
 
 contains a different disposition of the property from that 
 in a former Will, nor does the mere fact of so calling it 
 render it a revocatory instrument (q). The phrase in 
 question is merely one of form, meaning no more than 
 that the instrument was the last of those executed by*the 
 testator (r), and, as just observed, is not necessarily re- 
 vocatory. 
 
 The same construction will be placed on the words, 
 " this is my last Will and testament " by every Division 
 of the High Court of Justice. 
 
 A paper, amounting to a substantive WilJ, which dis- 
 poses of the whole property, is a revocation in toto of a pre- 
 vious Will, also disposing of the whole, even though executors 
 are named in the former paper, and not in the latter (s). 
 
 The rule of the English follows that of the civil law in 
 mettters of revocation and cancellation of WiUs — Tunc 
 prius testamentimi rwmpitur cum posterius perfectum 
 est (t). When a later WiU is duly made, a former one 
 becomes invalid — observe, a Will, not a mere testamentary 
 paper which may be incorporated with the actual Will. 
 
 A Will cannot be revoked by mere presumption of 
 an intention on the ground of alteration in circum- 
 stances (u), by mere abandonment (v), or by mere lapse of 
 time ; there must be some unequivocal act of cancellation 
 or obliteration by the testator himself, done animo revo- 
 candi (v). If the animus be found wanting, there is no 
 revocation (x). 
 
 Two of the most important cases of late years on 
 
 (q) Outto V. Oilbert, supra, n. (o). 
 
 (r) Thomas v. Evans, 2 East, 
 448 ; Stoddart v. Qrant, 1 Macq^. 
 H. L. 171. 
 
 (s) Henfrey v. Eenfrey, 2 Cvu't. 
 468 ; affirmed, 4 Moo. P. C. 29. 
 
 it) Iblott V. Bell, 34 Beav. 395. 
 
 (u) 1 Vict. 0. 26, s. 19 ; DePontis 
 T. Kendall, 31 L. J. Ch. 185, and 
 see Ford v. Se Pontes, 30 Beav. 
 572. 
 
 (v) Andrew v. Motley, 12 C. B. 
 (N. S.) 514 ; 32 L. J. C. P. 128. 
 This case is also a very important 
 one on the subject of the admissi- 
 bility of an insthiment more than 
 thirty years old, and brought from 
 the proper custody as evidence as to 
 matters with which it deals, with- 
 out further proof of its genuineness. 
 
 (x) ClarJcson v. Olarhson, 2 Sw. 
 & Tr. 497 ; 31 L.J. P. & M. 143. 
 
OP THE REVOCATION OP WILLS AND CODICILS. 335 
 
 the subject of total or partial revocation, and inten- 
 tion, are those of Clarke v. Scripps (y), and Gutto v. 
 Gilbert (z), to the latter of -syhich reference has been 
 made. The former was decided by Sir John Dodson in 
 1852, and the latter by the Judicial Committee of the 
 Privy Council in 1854, the judgment of which tribunal 
 was delivered by Dr. Lushington. The case of Clarke v. 
 Scripps, alluded to some time since with marked approval 
 by Lord Penzance, J. 0. (a) was this : — 
 
 A testator in 1843 executed his Will, which remained ciarhe v. 
 in his custody until his death, when it was found in a ^'^P^- 
 mutilated state — torn and cut ; but the signatures of the 
 testator and the attesting witnesses remained at the end of 
 the Will. Held that, in the absence of extrinsic evidence, 
 from the peculiar manner in which the mutilations were 
 effected, there was no intention to revoke the whole Will, 
 but that the papers as altered were intended for a draft 
 • of a new Will, and, in the event of his not making a new 
 Will, to operate as his Will. The testator died suddenly. 
 The question here was, as [it must always be in similar 
 cases, whether the Will should be considered as revoked 
 in toto or in part only, and the Court decided that it was 
 only partially revoked. 
 
 In the course of his judgment in Clarke v. Scripps, Sir Part of a 
 John Dodson said : — " Upon this enactment (1 Vict. c. 26, reTofedf 
 s. 20), it is obvious, first, that a party nly of a Will may 
 be revoked in the manner described — in other words, that 
 the wliole Will is not necessarily revoked by the destruc- 
 tion of a part ; nevertheless, I do not by any means 
 intend to say that the destruction of a part may not, 
 under certain circumstances, operate as a revocation of the 
 
 (y) 2 Bob. Eco. Eep, 563. torn off. No information could te 
 
 (s) 9 Moo. P. C. 143. obtained as to the terms of this part 
 
 (a) In the goods of Woodward, of the Will, and the question for 
 
 L. E. P. &D., 40 L. J. P.&M. the Court was whether the Will 
 
 17. In this case, the top of the had been revoked whoUy or only in 
 
 first of seven sheets of paper, on part.' Held that the latter had 
 
 which the WiU was written was onlyjjeen intended and effected. 
 
336 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Intention is 
 everything. 
 
 Evidence of 
 testator's 
 
 declaration 
 admissible. 
 
 In the goods 
 of Woodviard. 
 
 entire Will. Secondly, it is to be observed that the 
 burning, tearing, or otherwise destroying the instrument 
 must be done with the intention to revoke. It is not the 
 mere manual operation of tearing the instrument, or the 
 act of throwing it into the fire, or of destroying it by other 
 means, which will satisfy the requisites of the law ; the act 
 must be accompanied with the intention of revoking. 
 There must be the animus as well as the act ; both must 
 concur in order to constitute a legal revocation (&). 
 
 " It is the animus, also, which must govern the extent 
 and measure of operation to be attributed to the act, and 
 determine whether the act shall affect the revocation of 
 the whole instrument, or only of some, and what portion 
 thereof. Now, the intention of a testator to revoke 
 wholly, or in part, may, I think, be proved — first, by 
 evidence of the expressed declaration of a testator, es- 
 pecially if such declaration was contcmporaTieous with the 
 act. If on doing the act, whether burning, tearing, or 
 destroying the whole or a part, he should declare that he 
 did so with the intention to revoke, there would be the 
 act and intention ; to whatever extent the act was carried 
 if he declared that it was his intention thereby to revoke 
 the instrument, that declaration, I apprehend, coupled 
 with the act, would be sufficient. Secondly, the intention 
 may, in the absence of any express declaration, be inferred 
 from the nature and extent of the act done by a testator ; 
 i. e., it may be inferred from the state and condition to 
 which the instrument has been reduced by the act. 
 
 " From the face of the paper itself it may be inferred, 
 either he did intend to destroy it altogether, or did not." 
 " And thirdly," says Lord Penzance, supplementing Sir J. 
 Dodson's judgment in Clarke v. Scripps, " the intention 
 may, in some degree at least, be inferred from extrinsic 
 circumstances. There may have been declarations, not 
 direct as to the revocation, but such as would lead to the 
 inference whether he did intend to revoke the Will or not. 
 
 (6) See the important case "of Stoddart v. Grant, 1 Macq. H. L. 163. 
 
OF THE REVOCATION OF WILLS AND CODICILS. 337 
 
 Applying that reasoning to this case, in the absence of 
 evidence, I should not conclude from the mere fact of his 
 tearing off some eight lines of the Will, and the condition 
 to which he thereby reduced the document, that he in- 
 tended to get rid of the instrument altogether." 
 
 The case of Cutto v. Gilbert was as follows : — A testa- Cutto v. 
 tor executed a Will in 1825, which was found uncancelled * ^'"*' 
 at his death, which took place in 1853. In 1852 he exe- 
 cuted another testamentary paper, the contents of which 
 were wholly unknown, with the exception of the circum- 
 stance that the latter paper commenced with the words, 
 "This is my last Will and testament." The second in- 
 strument was not forthcoming at- his death, but there was 
 no evidence of its destruction. Upon appeal from the 
 Prerogative Court, the Judicial Committee of the Privy 
 Council decreed probate of the Will of 1825, and, according 
 to the able summary of the case by Mr. Moore held : — 
 
 1. That the onus probandi lies upon the party setting Burden of 
 up a subsequent instrument as a revocation of a former a'iater^ilT 
 
 Will (c). is oet up to 
 
 2. That to establish by parol evidence of execution only former one. 
 a revocation of a former Will relating to personalty, by a Evidence 
 subsequent testamentary paper not fqrthcoming, and in ''^1"''^^ • 
 the absence of any draft or instructions for such instru- 
 ment (c), such evidence must be strong and conclusive as 
 
 to its contents. 
 
 3. That the mere fact of such instrument commencing Later Will 
 with the words, " this is my last Will and testament " does y""^* H ^ 
 
 •' inconsistent 
 
 (c) See Sprigge v. Sprigge, L. E. strong and irrefragable evidence " to 
 
 IP. &D. 608; 38L. J. P. &M. 4. have been duly executed and in 
 
 N. B. A Tnere draft of, or instructions existence at the date of the testa- 
 
 for, a Will, are, hy reason of 1 Vict. tor's death, and there is reason for 
 
 c. 26, s. 9, alike useless to show suspecting its fraudulent suppres- 
 
 what a testator's intentions were. sion or destruction, then it seems a 
 
 This applies of course only to testa- draft or copy of such WiU may be 
 
 mentary papers made after Jan. 1, admitted to probate, Podmore v. 
 
 1838. SeelWms.Exors.pt. l,bk. 4, Whatton, 33 L. J. P. & M. 143. 
 
 ch. 2, § 5, p. 358. If, however, In the goods of Borsford, L. E. 3 
 
 a Will can be proved by "clear, P. & D. 211; 44 L. J. P. & M. 9. 
 
 Z 
 
 with former. 
 
838 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Prflsnmption 
 as to unkno'wn 
 Bubseqnent 
 WiU. 
 
 Presumptions 
 of reTOcation. 
 
 not render it a revocatoiy instrument ; as these words do 
 not necessarily import that such instrament contained a 
 different disposition of the property, and that, to make it 
 operate as a revocation of a former Will, it must be proved 
 that the contents of the later instrument were not merely 
 different from, but wholly inconsistent with, the former. 
 
 4. That a subsequent Will, the contents of which are 
 unknown, having remained in the custody of deceased, 
 and not being forthcoming, the presumption of law is that 
 it was destroyed by him anvrno revocandi, and did not 
 revoke a prior Will itself uncancelled. 
 
 Strange to say, soon after the Order in Council made 
 upon the appeal, a Will, dated March, 1851, and completely 
 in favour of the appellant, was found, whereupon application 
 was made to the Judicial Committee for probate. The 
 Court refused to sanction the application, on the ground 
 that its authority was already exhausted, but intimated 
 that a petition should be presented to the Crown, to refer 
 the matter specially to the Court. This was done, and 
 the Judicial Committee revoked probate of the Will of 
 1825, and admitted that of 1851 {d). 
 
 Most of the presumptions which arise in cases of revo- 
 cation are meve prcesv/mptiones juris, (or perhaps of fact) ; 
 that is, only primd facie, and so rebuttable by clear 
 evidence of facts, among which, declarations by the tes- 
 tator of goodwill towards the persons benefitted by it, 
 adherence to the Will as made, and the contents of the 
 Will itself, have much weight (e). The following is an 
 instructive case in point : — After a testator's death, his 
 Will, not being forthcoming, litigation ensued. The 
 solicitor who drew the Will proved that he left it with 
 
 (d) 9 Moo. P. C. 143. 
 
 (e) Patten v. PouUon, 1 Sw. & Tr. 
 65 ; 27 L. J. P. & M. 41. The 
 facts may, however, strengthen 
 rather than rebut the presumption 
 of revocation, as was the case In the 
 goods of Shaw, 1 Sw. & Tr. 62. 
 Read Keen v. Keen, L. B. 3 P. & D. 
 
 105 ; 42 L. J., P. & M. 61, a very 
 important case on this subject. 
 
 N.B. As to rebuttingthe presump- 
 tion of revocation when a "Will is not 
 forthcoming after a testator's death, 
 read Sugden v. Zord St. Leonards, 
 L. R. 1 P. & D. (N. S.), App.154 ; 45 
 L. J. P. D. & A. 1 ; and onappeal, 49. 
 
OP THE REVOCATION OF WILLS AND CODICILS. 339 
 
 testator, after its due execution. The testator, down 
 to a few days before death, repeatedly expressed feelings 
 of satisfaction to members of his family at having settled 
 his afifairs, and intimated that the WiU was with his 
 solicitor. Held that evidence of the declarations in ques- 
 tion was properly admitted to~ rebut the presumption that 
 the Will had been destroyed animo revocandi (/). 
 
 In cases where a second Will is alleged to have been 
 made, the onus probandi lying upon the party setting up 
 the subsequent instrument as a revocation of the former 
 one, the first fact to be proved is the execution of the later 
 testamentary paper relied on. 
 
 Parol evidence may be given against, and may have Parol evidence, 
 the effect of revoking any existing Will, if such evidence 
 conclusively show that another Will has been executed 
 with the intention of revoking the prior Will. Such 
 evidence, however, will be carefully scrutinized, and unless 
 it proves the second Will to have been a revocatory instru- 
 ment, its effect will be worthless, as the second paper might 
 possibly have been a codicil or merely something confirm- 
 atory of the former paper. 
 
 There can be no mere presumptive revocation of a Codicil. 
 codicil by the destruction of its Will, especially where the 
 two instruments are independent of each other, as where 
 a codicil is made for some special purpose (g). 
 
 In the course of his judgment in the important case of Lemagev. 
 Lemage v. Qoodhan Qi), Sir J. P. Wilde, J. 0. said "... '^'""^''""• 
 in deciding upon the effect of a subsequent Will, the 
 Court of Probate has to exercise the functions of a Court 
 of Construction (i). The principle applicable is well ex- 
 
 (/) WkUdey r. King, 17 C. B. J. P. & M. 25. 
 (N. S.) 756; See also Harris v. (h) L. E. 1 P. & D. 57 ; 35 L. 
 
 Berrall, 1 Sw. & Tr. 153 ef the cases J. P. & M. 28. 
 cited in Patten v. Poulton. (i) That is, generally, the Chan- 
 
 {g) In the goods of Ellice, 33 L. eery Division, H. C. J., the function 
 
 J. P. & M. 27 ; Black v. Johling, of construing "Wills heing only exer- 
 
 L. E. 1 P. & D. 685 ; 38 L. J. P. & cised occasionally by the Probate 
 
 M. 74, followed by In the goods of Division. 
 Samge, L. E. 2 P. & D. 78 ; 39 L. 
 
34,0 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Later papers 
 partly incon- 
 sistent with 
 earlier one. 
 
 Probate of 
 many papers 
 together. 
 
 Kedundancy 
 and repetition, 
 
 Intention 
 everything. 
 
 pressed by Mr. Justice Williams in his book on Exe- 
 cutors (Jc). He says, ' The mere fact of making a subse- 
 quent testamentary paper does not work a total revocation 
 of the prior one, unless the latter expressly or in effect 
 revoke the former, or the two are incapable of standing 
 together : for, although it is a maxim, as Swinburne says, 
 that as no man can die with two testaments, yet any 
 number of instruments, whatever be their relative date, or 
 in whatever form they may be (so as they be all clearly 
 testamentary), may be admitted to probate as together 
 constituting the last Will of the deceased. And if a sub- 
 sequent testamentary paper be partly inconsistent with 
 one of an earlier date, then s.uch later instrument will 
 revoke the former as to those parts only where they are 
 inconsistent.' This passage truly represents the results of 
 the authorities. The Will of a man is the aggregate of 
 his testamentary intentions, so far as they are manifested 
 in writing, duly executed according to the Statute {l). And 
 as a Will, if contained in one document may be of several 
 sheets, so it may consist of several independent papers 
 each so executed." 
 
 " Redundancy or repetition in such independent papers 
 will no more necessarily vitiate any of them than similar 
 defects if appearing on the face of a single document." 
 
 From the cases that have been referred to may be learnt 
 the main principles which govern the solution of questions 
 arising on the revocation of Wills ; but, of course, judicial 
 decisions must depend largely upon the peculiar circum- 
 stances of each case. It is clear, however, that the first 
 and the most important question to be asked in any case 
 of alleged revocation is — in the act done by the testator, 
 what was his intention (m), for there is no technical rule 
 as to words necessary to operate as a revocation. If a pre- 
 vious Will is stated to have been revoked by one of 
 
 (fc) Pt. 1, bk. 2, oh. 3, s. 2, 
 p. 162. 
 
 {1} 1 Vict. c. 26. 
 
 (m) InthegoodsofOolberg, 2 Curt. 
 832 ; Sims v. Sims, 1 Sw. & Tr. 
 155. 
 
OF THE REVOCATION OP WILLS AND CODICILS. 311 
 
 later date, the law will require the person alleging the 
 revocation to show the execution of a subsequent Will, 
 expressly revoking the former, or entirely or partially 
 inconsistent with such Will. 
 
 The High Court of Justice may admit to proof, as con- Probate of 
 stituting the Will of the deceased, any number of testa- testamentary ' 
 mentary papers provided they are not substantive Wills {n) ; ^°* otherwise, 
 or it may admit other papers which are not testamentary, 
 and were never actually meant to be so, if they were in- 
 tended to operate only after testator's death (o). The 
 Court must collect from the various dispositions ii; the dif- 
 ferent documents what the testator's intentions were ; and 
 the question in all cases is what he designed to revoke, 
 and what to retain (p). 
 
 Where an earlier paper is alleged to be impliedly re- fUeged 
 voked by a later one, this is the question for the Court to yocation. 
 determine, and the other inquiry as to what papers the 
 testator expected would be admitted to probate is quite 
 immaterial (p). 
 
 If the Courtis of opinion that a later paper wasexecu- Where later 
 ted as a substantive Will, and it disposes of all the personal ^^tsYantive 
 property, although there may be no express revocation of Will wholly 
 the former Will or Wills, or of the appointment of exe- a former one. 
 cutors, the Court will, ex necessitate, hold the last instru- 
 ment to be a revocation of the" former ones (q). 
 
 Where probate is granted of two or more documents as Probate to all 
 forming the last Will of the deceased, it is the practice of 
 the Court to include in the grant all the executors named 
 in the several papers (r). 
 
 (ii) Eenfrey v. Henfny, 2 Curt. IP. & D. 57 ; 35 L. J. P. & M. 
 
 473 ; affirmed, 4 Moo. P. C. 29. 28. Judgment. In the goods of 
 
 See anU, p. 332, n, (i). PetcUll, L. R. 3 P. & D. 153 ; 43 
 
 (o) Qladstone v. Tempest, 2 Curt. L. J., P. & M. 22, where Sir J. 
 
 650 ; Masterman v. Maherly, 2 Haimen follows the preceding one. 
 
 Hagg. Eoc. Rep. 247 ; In the goods (j) Henfrey v. Eenfrey, supra. 
 
 of Morgan, L. R. 1 P. & D. 323 ; (r) See e. g. In the goods of 
 
 35 L. J. P. &. M. 98. Nickalls, 34 L. J., P. & M. 103. 
 
 (p) Lemage v. Qoodian, L. R. 
 
 the executors. 
 
31^2 WILLS OF PERSONAL PROPERTY. 
 
 Eevocation of ^ testator may, by a subsequent instrument, revoke 
 uot necessarily the appointment of executors in his Will, without ex- 
 revoke the pressly naming them, and without necessarily revoking 
 the Will itself, provided the two papers can stand to- 
 gether, as in the following case (s), which has since beeii 
 followed (t). A testator appointed A. and B., executors 
 of his Will, but in a subsequent codicil thereto, named his 
 wife as his " sole executrix," and the Court of Probate 
 held, relying on the word " sole," that this revoked the 
 former appointment of A. and B., but left the Will 
 good. 
 
 We need hardly say that a testator cannot revoke, either 
 a gift to a legatee, or the appoiatment of an executor by 
 merely striking out their respective names after the eoce- 
 Gution of his Will (u). 
 Goads of The two cases cited below (a;) are considered authorities 
 
 on the subject of which we are now treating. The first 
 was this : — A testator, in February, 1859, duly executed a 
 testamentary paper, dealing with realty and personalty, 
 whereof he appointed A. B. and C executors. In October, 
 1860, he made another paper, disposing in a different 
 manner of his personal property, but not affecting the' 
 former disposition of the realty. In the second paper he 
 appointed A. and D. executors. The question to be 
 decided on these facts was — did the second nomination of 
 executors revoke the first ? The Court held that it did 
 not ; for although the second disposition of the personalty 
 destroyed the first Will as to that portion of the property 
 dealt with, yet, as the bare nomination of executors in a 
 Will of realty only, entitles that Will to probate, the 
 executors of the second Will were entitled to crave pro- 
 
 (s) In the goods of Lowe, 3 Sw. & M. 53. Ss&epost, pp. 347, 348. 
 Tr. 478 ; 33 L. J. P. & M. 155. {x) In the goods of Leese, 2 Sw. 
 
 (t) In the goods of Baily, L. E. & Tr. 422 ; 31 L. J. P. & M. 169 ; 
 
 1 P. & D. 628 ; See also In the goods Oeaves t. Price, 3 Sw. & Tr. 71 ; 32 
 
 of Andrew, 42 L. J. P. & M. 38. L. J. P. & M. 113. See also In the 
 
 (tt) Dancer v. Crabb and Thomp- goods of Morgan, ante, p. 332, 
 
 son, L. E. P. & D. 42 L. J. P. & u. (Jc). 
 
OP THE EEVOCATION OF WILLS AND CODICILS. 343 
 
 bate of both, and that the executors under the first Will 
 might if they chose, also come in and prove. 
 
 From this case it may be learned, that the re-appoint- ^^^ co-eiecu- 
 
 ^^tor appointed 
 
 ment m a testamentary paper of later date of one of the -witli former 
 executors of a former Will with a new co-executor does °°^^' 
 not amount to a revocation of the appointment of exe- 
 cutors in the first paper, and Sir C. Creswell, J. 0., said 
 that he had " looked in vain for any authority " for a 
 contrary proposition. 
 
 In Oeaves v. Price, the testator in 1853, gave all his Geaves v. 
 real and personal estate to A., and appointed him sole 
 executor, and by a subsequent codicil, which contained no 
 clause of revocation, he gave two houses to B., and ap- 
 pointed him sole executor : — Held, that the later Will, 
 not being inconsistent with the earlier one, did not revoke 
 it, and that A. and B. were entitled to probate of both 
 instruments. 
 
 In a more recent case (y), it appeared that a testator Goods of 
 made two Wills. By the first, which disposed of all his ^^ '""■ 
 property, he appointed his wife " sole executrix." By the 
 second, which disposed of part of his property, and did not 
 expressly revoke the first paper, he appointed A. his exe- 
 cutor. The question was, whether or not this second Will 
 was to be taken as revoking the former appointment of 
 executrix ; and Sir J. Hannen, J. 0., held that, neither 
 expressly nor impliedly did the second Will revoke the 
 appointment of the testator's wife as executrix, and 
 therefore granted her probate of both Wills upon the 
 authority of the two cases which we have just been con- 
 sidering. 
 
 The test of revocation or no revocation of a Will Test of revo- 
 cation or 
 itself, or merely of executors, m cases where executors otherwise, of 
 
 named in a subsequent Will are different from those in a g^^^org.^*^ 
 
 former one may, accordingly, be found by asking the 
 
 question : — 
 
 Can the papers stand together as one Will ? If they can, 
 
 {y) In the goods ofAiidrew, 42 L. J. P. & M. 38. 
 
3M 
 
 WILLS OP PERSONAL PBOPERTY. 
 
 Testator cut- 
 ting off his 
 signature. 
 
 Obliteration of 
 
 testator's 
 
 signature. 
 
 Meaning of 
 " destruction 
 of aWiU." 
 
 then only the appointment of executors may be revoked, 
 and the Will is good ; moreover, we have seen that even 
 the first appointment of executors need not necessarily be 
 revoked. Again, if papers cannot stand as one Will, 
 prior ones may be revoked either wholly or pro tanto by 
 the subsequent nomination of executors, and all those 
 named in the last document will take probate. 
 
 If a testator, with the intention of revoking merely the 
 appointment of an executor, cut off his own signature 
 from the Will, or do any other similar act, the Court 
 cannot in such a case consider the question of intention, 
 for the whole Will is by the act revoked, and the Court 
 must pronounce for an intestacy (s). 
 
 The Wills Act, 1838, does not, like the Statute of 
 Frauds, expressly use the words "obliteration" or "can- 
 cellation," in enumerating the modes of revocation which 
 it sanctions, but, to quote the words of Sir H. J. Fust in 
 Hobbs V. Knight (a), "if the obliteration amount to a 
 destruction of the Will ... I see no reason why it should 
 not be revoked in that way as well as any other." This 
 learned judge was of opinion that the intentional total 
 obliteration of a testator's signature by himself would be 
 a destruction of his Will, that is, of course, if not re- 
 signed (a). 
 
 By the expression " destruction of a Will," is commonly 
 understood a disintegration and decomposition of the 
 material on which the Will is written, but as we see, 
 destruction can be effected by doing something tanta- 
 mount thereto, and the whole document, in order to be 
 revoked, need not necessarily be torn, burnt, or otherwise 
 destroyed. " There must be a destruction of so much as to 
 impair the entirety of the Will, so that it may be said 
 that the Will does not exist in the manner framed by the 
 
 (s) In the goods of Marshall, 5 
 Jur. 687. 
 
 (a) 1 Curt. 780. Read with this 
 case that of Bdl v. Fothergill, L. R. 
 2 P. & D. 148. In the goods of 
 
 King, 2 Rob. Eoc. Rep. 403, was a 
 case of obliterated signature and re- 
 signature, and probate was granted 
 of the paper as found. 
 
OF THE REVOCATION OF WILLS AND CODICILS. 345 
 
 testator (h) ; in short, it is sufficient to satisfy the words 
 " otherwise destroying," if the essence of the instniment, 
 not merely the material, be destroyed " (c). 
 
 The 21st section of the Wills Act declares "That no Obliteration, 
 obliteration, interlineation, or other alteration made in any °'' "' 
 Will, after the execution thereof, shall be valid or have 
 any effect, except so far as the words or effect of the 
 Will, before such alteration, shall not be apparent, unless 
 it be re-executed as prescribed by the Act." 
 
 One of the earliest cases which arose on the construe- Substitution 
 
 , , of one legacy 
 
 tion of this section was that of In the goods of Rxppxn (a), tor another. 
 There, the testator duly executed his Will, which gave a 
 legacy of fifty pounds to S., but subsequently to the exe- 
 cution, testator erased the word fifty and substituted the 
 word thirty, without attesting the alteration. In the 
 opinion of Sir H. J. Fust, the legacy was lost altogether, 
 as it was not apparent what the word was over which 
 "thirty" had been written, and he was also of opinion 
 that parol evidence was inadmissible to show what the 
 obliterated sum was. Accordingly, probate of the Will 
 passed in blank, . that is, without any sum mentioned 
 at all. Shortly afterwards, however, it was held by 
 the Judicial Committee of the Privy Council in the case 
 of Brooke v. Kent (e), that evidence aliunde may in such 
 a case as the above be admitted, and the executors in the 
 former case were directed to bring in the probate, which 
 they did, and the legacy of fifty pounds to S. was inserted. 
 
 Brooke v. Kent established that where a testator in- Eevocation of 
 tending to revoke a legacy, by substituting a different subStion 
 sum to that originally given, and such substituted sum is »* » different 
 not effectually given, the original legacy is not revoked, 
 also, as we have seen, that evidence is admissible to show 
 what was the original legacy. 
 
 (6) JDoe dem. Beed v. Hoerris, 6 (d) 2 Curt. 332, but see the same 
 
 Ad. & Ell. 209 ; 6 L. J. K. B. 84 case, 3 Curt. 121, where it is re- 
 
 (1837.) Per Coleridge, J.. ported as Soar v. Bolman. 
 
 (c) HolU V. Knight. Judgt. (c) 3 Moo. P. C. 334. 
 
316 
 
 WILLS OF PERSONAL PKOPEETY. 
 
 Obliteration. 
 
 Meaning of 
 "apparent." 
 
 Bistinntion 
 between the 
 
 Ecvocation of 
 a legacy by 
 substitution of 
 different name 
 or sum, or by 
 no substitution 
 at aU, 
 
 Another early case on this subject was Townley v. 
 Watson (/). In this instance, a testatrix. Miss Townley, 
 obliterated, animo revocandi, several passages of her 
 Will, so that none of the writing effaced could be dis- 
 tinguished. The animus was shown from statements 
 made by testatrix to a witness (g) at the time of making the 
 obliterations, which, however, were not attested in writing. 
 Held, that the revocation of the passages in question was 
 complete within section 21 of the Wills Act, 1838, inas- 
 much as the words that had been expunged were not 
 apparent on the face of the Will itself, and, therefore, 
 could not be supplied by evidence, extrinsic or otherwise, 
 nor would their restoration carry into effect the intention 
 of the testatrix, which was undoubtedly to revoke the 
 legacies which she had scratched out (g). 
 
 The meaning of the word " apparent " in this 21st sec- 
 tion is " apparent on the face of the Will itself," and not 
 " capable of being made apparent " Qi). 
 
 In Townley v. Watson, Brooke v. Kent was cited in 
 support of the defendant's view, but Sir H. J. Fust dis- 
 tinguished these cases thus: — The latter case, he said, 
 turned entirely on the want of intention to revoke ; in the 
 former, this intention was clear. In Brooke v. Kent, it 
 was the intention to substitute one legacy for another ; in 
 Townley v. Watson, it was to revoke legacies in toto, and 
 " the Legislature must be assumed to have meant, that an 
 obliteration, interlineation, or other alteration, shall be 
 made animo revocandi, that is, with an intention to re- 
 voke, not to substitute." 
 
 From what has been said, it will be seen that there may 
 be a revocation of a legacy, either by substituting another 
 legatee's name to the gift, or by a different gift to the 
 same legatee, or by no substitution at all, but simply by 
 
 (/) 3 Curt. 766. 
 
 (g) Id. 769. Evidence of decla- 
 rations by a testator as to bis inten- 
 tion to adhere to, or depart from. 
 
 his Will are admissible in cases of 
 alleged revocation by destruction : 
 Keen v. Keen, ante, p. 338, n. (e). 
 (A) 3 Curt. 768. 
 
OF THE HE VOCATION OF WILLS AND CODICILS. 347 
 
 obliteration, renderiBg the previous writing indiscernible, 
 which would be a complete revocation ; but in the former 
 case, revocation to be effectual must be properly at- 
 tested (i). 
 
 Where alterations appear on the face of a Will, whether 
 of realty or personalty, there is a prima facie presump- 
 tion that they were made after the Will was executed, 
 and it lies upon the party setting up the Will to give 
 some evidence to rebut that presumption (k). No irre- 
 buttable presumption of law, however, exists as to 
 whether they were or were not made at any particular 
 time, but the rule in such cases is that those who pro- 
 pound a doubtful instrument must so far explain it as to 
 clear away any doubt concerning it (Jc). 
 
 The language of the Wills Act in the section which we Caution to 
 
 , T • J ■ 1 << ^ r j.1. testator as to 
 
 have been considering, namely, "except so tar as the obliterations 
 words or effect of the Will, before such alteration, shall erasm-es, &c. 
 not be apparent," ought not to be taken advantage of by 
 testators, for the intended erasures may be so incomplete 
 as to render the words decipherable, in which case obli- 
 teration will be merely equivalent to an unattested can- 
 cellation, and the words will stand as part of the Will (l). 
 
 If the expunged words are capable of being made out, Practice of tie 
 
 , ^ , , ,11,1 • • , High Court of 
 
 the Court may have recourse to all the means m its power, justice where 
 as by chemical agents or magnifying glasses, &»., ^''pinged 
 
 •'. ° o J o o ' ' -words are capa-! 
 
 to decipher them, and pronounce its judgment according We of being 
 to the testimony offered (m), and "if an alteration be by ^'^"'i"® ■ 
 yfSij oi substitution, Tpaxol eyidence is admissible to show in cases of 
 what the original words or figures were, and on such proof substitution 
 
 admitted. 
 
 (j) In the goods of Harris, 1 Sw. on this point. 
 & Tr. 536 ; 29 L. J. P. & M. 79 {I) iMsUngton r. Onslow, 12 
 
 (which shows the necessity for at- Jur. 465 ; 6 N. C. 183. 
 testation of erasures, &o.),; In the (m) Tovmley \. Watson, 3 Curt. 
 
 goods of James, 1 Sw. & Tr. 238. 767 ; , In the goods of James, 1 Sw. 
 
 (k) Doe d. Shallcross v. Palmer, & Tr. 238. But read In the goods 
 
 16 Q. B. 747 ; 20 L. J. Q. B. 367, of Horsford, L. E. 3 P. & D. 211 ; 
 
 approved of by Wood, V.-C, in 44 L. J., P. & M. 9. Judgment of 
 
 Williams v. Ashton, 1 John & Hem. Sir J. Hannen. 
 115, which is an authoritative case 
 
WILLS OF PERSONAL PROPERTY. 
 
 Cancellation 
 of no use 
 alone. 
 
 Burning and 
 tearing of 
 Wills, cmimo 
 revocandi. 
 
 Animus revo- 
 candi wanting. 
 
 Actual de- 
 struction of 
 the Will. 
 
 Dependent 
 relative revo- 
 cation. 
 
 being given they will be restored, and probate will pass 
 of them" {%). 
 
 Cancellation, then, is not a proceeding which will alone, 
 as before the Wills Act, 1838, revoke a Will. The can- 
 ceilings must be signed and attested to be effective. 
 
 We now proceed to consider two modes of revoking a 
 Will which that Act directly mentions, namely, by burn- 
 ing or tearing it. 
 
 The following is a useful case on the 20th section of the 
 Statute : — 
 
 A testator being led to believe that his Will was not a 
 valid document, tore it up and gave the pieces to his wife, 
 requesting her to put them into the fire. The fire, how- 
 ever, had not been lighted, but she placed the pieces 
 on the fuel in the grate. A few minutes .aftervvards the 
 testator thinking that possibly he might be wrong, took 
 the pieces from the grate and preserved them : — Held, 
 that there had been no revocation, the act of tearing not 
 having been accompanied by the animus revocandi ; and 
 probate was granted of the Will as contained in the 
 pieces (o). This case again shows clearly that the animus 
 is the main feature in acts connected with revocation, for 
 if the Will had been burnt, there would in this case have 
 been no revocation because there was no intention to revoke. 
 ■ It may probably occur to the reader, to ask how matters 
 would have stood if the Will in the above case had 
 actually been destroyed, and the testator had died before 
 being able to make another. This, and other questions of 
 a kindred character which present themselves, will be 
 noticed presently in the chapter on "Lost, Missing, 
 Destroyed, and Stolen Wills." 
 
 Incident to the branch of testamentary law which we 
 are now discussing, is the expression dependent relative 
 revocation, which, at first sight, wears a somewhat compli- 
 cated appearance. 
 
 (ra) Coote's Prob. Prac. 62. In (o) Giles v. Warren, L. K. 2 P. 
 
 tie goods of Harris, ante, n. (i). & D. 401 ; 41 L. J. P. k M. 59. 
 
OF THE REVOCATION OF WILLS AND CODICILS. 349 
 
 It simply means, however, a revocatory act on the part Wtatitis. 
 of a testator, intended by him at the time of its perform- 
 ance, to be absolute, but which is dependent for its validity 
 upon whether another relative act was so performed that 
 the two proceedings could together produce that revocation 
 of his Will which he meant to effect. It is in fact revoca- 
 tion, conditional upon the validity of another act. 
 
 " The principle, that the effect of the obliteration, can- Origin of the 
 celling, &c., depends upon the mind with which it is done, 
 having been pursued in all its consequences, has intro- 
 duced the doctrine of dependent relative revocations, in 
 which the act of cancelling, &c., being done with reference 
 to another act, meant to be an effectual disposition, will 
 be a revocation or not, according as the relative act be 
 efficacious or not " (p). 
 
 Accordingly, if a man designing to revoke a present Will, Explanation of 
 makes a subsequent instrument not duly executed, and ^ ^ ^^^' 
 then mutilates the former animo revocandi, under the 
 impression that the second paper is a perfect Will, the latter 
 will not be effectual to supersede the former (q), because 
 it has not been duly executed and attested. In other words, 
 the force of the act intended to be revocatory is dependent 
 on, and relative to, the validity of the other, that of making 
 the complete second instrument, and is, therefore, not in 
 itself an absolute, but a dependent relative revocation (r). 
 
 Such is an explanation of the phrase, dependent rela^ 
 tive revocation ; we will now put a case by way of illustra- 
 tion of this doctrine : — 
 
 A, made a valid Will of lands before Jan. 1, 1838, lUustrative 
 
 case. 
 
 (p) 1 "Wms. Exors. pt. 1, bk. 2, 258. Of course, if it cannot be 
 
 ell. 3, sect. 1, 148, quoting 1 Powell clearly shown that, the destruction 
 
 on Devises by Jarman, 600. of one instrument is referable wholly 
 
 (q) See Sir AV. Grant's Judgt. in and solely to the intention to set up 
 
 Ex parte the Earl of Hchester, 7 another, there is no dependent re- 
 
 VeS. 380, followed by Sir J. P. lative, but an absolute revocation 
 
 Wilde In the goods of Middkton, of the paper destroyed. EckersUyy. 
 
 3 Sw. & Tr. 583 ; 34 L. J. P. & M. Piatt, L. K. 1 P. & D. 281 ; 36 L. 
 
 16. J. P. & M. 7, a very important 
 
 (r) See Scott v. Scott, 1 Sw. & Tr. case. 
 
350 WILLS OF PERSONAL PEOPEETY. 
 
 which we will call (W,), and of which, at the same time, 
 he duly executed a duplicate (D). Sometime after, he 
 ordered (W,) to be rewritten, hut with a variation ; viz., 
 the addition of the name of a trustee, and also with a 
 clause revokimg all form&v Wills. This paper, which we 
 will call (Wj), was not attested according to law. 
 
 After making (W^), however, he tore off the seal of 
 (D) (s), under the impression that thereby he made good 
 (Wj), and the question was, did (W^), which was not 
 available to pass lands (t), revoke (W,) ? The Court held 
 that it did not; because the cancelling of (W,) was a 
 dependent act, performed vnth. a view to affirm (Wj), in 
 the belief that (Wj) had actually revoked (W,), and which 
 induced the testator to tear (W , ) as being of no use. The 
 effect of the Sictdepended on the validity of (Wj), as to which 
 the testator was mistaken, and if (W,), was not effectually 
 revoked by (W^), neither ought the act of tearing (W,) 
 to have revoked it. This was the case of Onions v. Tyrer, 
 decided in 1716 by Lord Chancellor Cowper {u). 
 
 Here we see a testator intending to revoke all his 
 former dispositions by (W^^). Accordingly, he cancels 
 (WJ ; but the operative force of this latter act was de- 
 pendent upon the validity of (Wg). This supposed 
 validity did not however exist; accordingly, the can- 
 celling of (W,) was useless. Had the testator known of 
 the invalidity of (W^), he would not have attempted to 
 destroy (Wi), and as we see that the cancelling of (W,) 
 
 (s) It has been held that if a appoint under his hand and seal, in 
 
 man having two properly executed which case the Will would require 
 
 duplicates of his Will, cancels sealing. Sug. Pow. 217, 218, 219. 
 one of them, that this act done {t) Before 1 Vict. c. 26, an in- 
 
 animo revocamdi, revokes the whole formal WiU of lands and personalty 
 
 Will. Oniom v. Tyrer, and the would have passed the personalty, 
 cases there cited. See also 1 Wms. (m) 1 P. Wms. 343 ; Pow. Dev. 
 
 Exors., pt. 1, bk. 2, ch. 3, § 1, 150. 601 ; see also Ex parte Earl of 
 
 Merely sealing a WEI is not an ex- IWiester, 7 Ves. 348 ; also Thynne 
 
 ecution thereof, nor is it necessary, v. Stanhope, 1 Add. 52, and Syde 
 
 unless the Will be in execution of v. Hyde, 1 Eq. Ca. Abr. 409 ; 
 
 a power authorising the testator to Williams v. Tyley, 5 Jur. 3S. 
 
 Observations. 
 
OF THE REVOCATION OF WILLS AND CODICILS. 851 
 
 was dependent on, and relative to, the supposed validity of 
 (W,j), we are able to perceive that the case comes 
 completely within the definition of dependent relative 
 revocation. 
 
 Let us take another case of a more recent date, and Powell v. 
 examine it in the same manner. A. executed (WJ in P"^'^- 
 1862. In 1864 he executed (WJ revoking all former 
 Wills. In 186-5 he destroyed (W^) with a declaration 
 made at the time, that he wished to substitute for it 
 (W,), which was in his hand at the time : — Held, that the 
 act of destruction by the testator was referable solely to 
 his intention to validate (W,), and, that act being con- 
 ditional and ""the condition being unfulfilled, there was 
 no revocation. This was the case of Powell v. Powell, 
 decided by Sir J. P. Wilde, J. 0., in 1866 (x). 
 
 Here the testator executes (W,) to revoke (W,) ; he observations. 
 then destroys (W^) to give new validity to (W,). Quaere, 
 Is (Wj) legally revoked ? The object was to set up 
 (W,), but this he could not do, because the Wills Act, 
 1838, declares that a Will once revoked in any manner 
 shall not be revived otherwise than by its re-execution, or 
 by another duly executed writing to that effect (y). In 
 his ignorance, the testator destroyed (W^) under the im- 
 pression that (W,) would operate in its stead. The act 
 was therefore dependent for its efficacy upon the valida- 
 tion of (Wj), and this could not result by reason of the 
 above provision in the Wills Act, 1838. The destruction 
 of (Wj) not giving effect to the testator's intention, there 
 was ■ consequently no revocation thereof, for the anitnus 
 revocandi had only a conditional existence. 
 
 The decision in Powell v. Powell overruled a dictum of 
 Sir Creswel] Oresswell in Dickenson v. Swatman (z), that 
 the doctrine of dependent relative revocation did not 
 apply to the burning of a later Will, because such burning 
 
 (x) L. R. 1 P. &D. 209 ; 35 L. • (i/) Sect. 22. 
 J. P. & M. 100. (z) 30 L. J. P. & M. 84. 
 
352 WILLS OF PERSONAL PEOPBETY. 
 
 was an absolute revocation ; but, as we have seen, it may 
 
 be dependent and relative (a). 
 
 In the course of his judgment in Powell v. Powell (6), 
 
 Sir J. P. Wilde, J. 0., gave the following explanation of 
 
 the subject we are now discussing. He said : — 
 
 Sir J.P.Wilde's " The doctrine of dependent relative revocation is based 
 explanation. ^ 
 
 on the principle, that all acts by which a testator may 
 
 physically destroy or mutilate a testamentary instrument, 
 
 are, in their nature, equivocal. They may be the result 
 
 of accident, or, if intentional, of various intentions. It is 
 
 therefore necessary, in each case, to study the act done by 
 
 the light of the circumstances under which it occurred, and 
 
 the declarations of the testator with which it may have 
 
 been accompanied. For unless it be done animo revo- 
 
 candi it is no revocation." 
 
 If, then, the act intended to be revocatory, is based on 
 a belief that a condition, or fact, is fulfilled or exists, when 
 such is not the case, that is an act of dependent relative 
 revocation. 
 
 " Cases may, and probably will arise, in which the in- 
 tention is either mixed or ambiguous " (6) ; but where the 
 act of destruction is referable, wholly and solely, to the in- 
 tention of setting up another testamentary paper, and not 
 to any abstract intention to revoke, but simply to validate 
 another paper, and if the intention of revoking is not ful- 
 filled, there is only a dependent relative revocation, and 
 not an absolute one — in short, an old Will is not revoked, 
 if the new one be not effectually made. Of this character 
 Dancer V. was the case of Daiicerv. Crabb (c). The testator, M. T., 
 in 1865, duly executed a Will, in which she appointed 
 H. P. and A. U. executors, and named H. P. one of the 
 residuary legatees. Some years afterwards, she sent for 
 H. D., the plaintiff in the case, the daughter of a friend, and 
 having produced her Will and read it, informed H. D. that 
 
 (») Ante, p. 347, n. (o). (c) L. R. 3 P. & D. 98 ; 42 L. J. 
 
 (6) Pomll V. Fowell, L, E. IP. P. & M. S3. 
 & D. 209 ; 35 L. J. P. M. 100. 
 
 Craib. 
 
OF THE REVOCATION OF WILLS AND CODICILS. 353 
 
 she wished the name of A. U. to be struck out, and re- 
 quested plaintiff to write something for her. She, there- 
 upon, dictated some minutes of alterations which she 
 desired to make in her Will, and which, though rough and 
 incomplete, were afterwards embodied in the draft of a 
 document which was probably intended as a formal Will. 
 The testatrix then tore off and burnt the part of the old 
 Will which had been copied by the plaintiff at the re- 
 quest of the testatrix, and also struck out the name of the 
 executor A. U. She then put the remaining portion of 
 the Will, and that which had been written by plaintiff, 
 into a desk and locked them up. Shortly afterwards other 
 alterations were made by the testatrix, who also then ex- 
 pressed her intention of sending for her solicitor to see that 
 what she had done was right. Before, however, he was 
 consulted, tbe testatrix died ; whereupon the plaintiff, as 
 residuary legatee, propounded the Will of 1865, and 
 alleged a revocation of the portion thereof which we have 
 mentioned. The defendants, the next of kin, traversed 
 the due execution of this Will, and pleaded a total 
 revocation. 
 
 The case was heard on the 23rd of May, 1873, and 
 after a cur. adv. vult.. Sir J. Hannen, J. 0., on the 24th 
 of June, held, that the testatrix did not intend to cancel 
 her Will in toto ; that she intended the cancellation of 
 the portion of it which she destroyed to be dependent on the 
 validity of the new disposition, and that as it failed there 
 had been no cancellation. Probate was therefore decreed 
 of the portion of the Will which was preserved, and which 
 bore the attestation and signatures of herself and at- 
 testing witnesses. A. U.'s name was restored, and the 
 copy made by the plaintiff of that portion of the Will 
 which was destroyed was also admitted to probate. In the 
 course of his judgment in this case, Sir J. Hannen said : — 
 " The conclusions of fact which I draw here are these : — 
 1. That the deceased did not intend by tearing and burn- 
 ing a portion of her Will to cancel it in toto. 
 
354 WILLS OF PERSONAL PROPERTY. 
 
 " 2. That she believed that by preserving the residuary 
 clause' with her signature, and the subscription of the 
 witnesses, and placing this portion with the paper written 
 at her dictation, she was constituting a new "Will. 
 
 " 3. That but for this belief she would not have torn 
 off the portion which she destroyed, seeing that the 
 substituted dispositions did not substantially alter her 
 distribution of the bulk of her property amongst the 
 plaintiff's family, and that she could not have thought 
 that the tearing was necessary, in order to get rid of A. TJ. 
 as executor, because, from the manner in which she dealt 
 with the more important residuary clause, she showed 
 she considered striking his name out sufficient. 
 
 "4. That she did' not preserve the portion of the Will 
 and the paper written by the plaintiff as instructions for a 
 new Will, her statement to the plaintiff, together with her 
 conduct with Mr. Dawes, showing that she considered she 
 had already mad^e a new and valid Will. 
 
 " Upon these findings the question arises, whether the 
 destruction of the first portion of the Will was an absolute 
 cancellation, or only a dependent relative cancellation of 
 the part torn off and burnt," and, as we have sefen, the 
 Court decided that the original Will was not revoked. 
 Age of Will It is unimportant in these cases whether the instru- 
 
 ment sought to be established has been in existence a 
 long or short time. Here is a case in point. A. made 
 (Wj), and afterwards had it re-copied, but omitting one 
 bequest. This (W^) was, however, informally executed. 
 Two years afterwards, she cut out of (W,) the names of 
 the attesting witnesses without giving any reason for so 
 doing. Both Wills remained in her possession until her 
 death. Held, that it was a reasonable presumption, not- 
 withstanding lapse of time, that testatrix mutilated (W,) 
 under the erroneous impression that (W^) was valid, and 
 therefore that the doctrine of dependent relative revocation 
 applied (d ). 
 
 {d) Ii the goods of MiddUUm, 3 Sw. & Tr. 583 ; 34 L. J. P. & M. 16. 
 
 immaterial. 
 
OP THE REVOCATION OF WILLS AND CODICILS. 355 
 
 In order to establish a case of dependent relative revo- intention to 
 cation, it must be shown by the evidence of disinterested iS.* "p ^^f'^^^ 
 
 ' ■' _ _ Will must 
 
 witnesses that the act of destruction of a Will was re- appear. 
 ferable wholly and solely to an intention to set up some 
 other testamentary paper (e). 
 
 If a testamentary paper contain no express revocation Appointment 
 of former ones, the Court will not infer such revocation "* ^''e<'«'''i' 'i» 
 
 ' _ _ later paper and 
 
 from the mere appointment of an executor in the sub- not in former 
 sequent one (/). 
 
 Where revocation of a Will is sought to be implied inconsistent 
 
 n . • , j_ T -i J.- • 1. J. •(■ limitations. 
 
 from mconsistent limitations in a subsequent paper, if 
 revocation at all takes place, it will only be to the 
 smallest extent that will] serve to reconcile the two in- 
 struments (g). 
 
 A Will may be merely cancelled without being neces- Cancelling 
 sarily revoked, as it might before the Wills Act, 1838, but g°rUy rewke!" 
 now, in order that cancellation may operate as a revoca- 
 tion, the cancellation, as we have seen, must be attended 
 with all the formalities required for the due execution of 
 a Will (h). The marriage of a person revokes his or her 
 Will made after Jan. 1, 1838, but any testamentary ap- 
 pointment made in exercise of a power simply collateral 
 will remain unaffected by the marriage {i). 
 
 No declaration, written or verbal, that a person may Declaration by- 
 make that any past or future marriage shall not revoke ^^^rri^e shall 
 his or her Will, can avail against the authority of the notreToke, 
 
 marriage is 
 statute. useless. 
 
 The only exception to its vuleij) is, as we have seen, in Exception to 
 favour of a testator who makes a Will " in exercise of a j.^^^ * " °^^ 
 Power of appointment, when the real or personal estate 
 thereby appointed would not in default of such appoint- 
 ment pass to his or her heirs, customary heirs (h), 
 
 (e) EcHrsUy v. FlaU, L. E. 1 (i) 1 Vict. u. 26, s. 18. 
 P. & D. 281 ; 36 L. J. P. & M. 7. 0) Ibid. 
 
 (f) Richards Y. Queen's Proctor, (k) That is, the heir to a cus- 
 1 Spinks, 235. ternary freehold, a species of copy- 
 
 (g) Francis v. Collier, ^ Kuss. hold, held by copy of court roll, yet 
 333. not, like an ordinary copyhold 
 
 [K) 1 Yict. c. 26, s. 21. estate, at the will of the lord. 
 
 A A 2 
 
356 WILLS OF PEESONAL PROPERTY. 
 
 executor, or administrator, or the person entitled as his or 
 her next of kin under the Statute of Distributions (1). 
 Effect of aj- " The only effect of annulling the Will in a case within 
 
 nulUng a Will . ■' ° . 
 
 which is within the exception would be, not to vest the property in the 
 the exception, ^g^ family of the testator, but to carry it over to the 
 person entitled in default of appointment. But it is not 
 necessary that the property in default of appointment 
 must go to the new family, if there be any, but only that 
 it may ; for if a man (and it is the same as to a woman) 
 have a general Power of appointment, with a limitation in 
 default of appointment, to himself in fee, and having a 
 son by his first marriage, make his Will, and then marry 
 again, his Will will be revoked ; and yet if he die intestate, 
 the estate will descend to the son by the first marriage, 
 in exclusion of the issue of the second" (m). 
 
 (l) 22 & 23 Car. 2, c. 10. See (m) Sugden on Pow. 161. 
 
 ante, p. 302-3. 
 
CHAPTER VI. 
 
 OF THE REVIVAL OF WILLS. 
 
 By the revival of a Will is meant its restoration to Meaning of the 
 validity after having been revoked. expression. 
 
 As a Will may he wholly or partially revoked, so it 
 may be wholly or partially revived. 
 
 But "no Will or codicil, or any part thereof which Ke-execution 
 shall be in any manner revoked, shall be revived otherwise revive a Will, 
 than by re-execution thereof, or by a codicil executed in 
 manner hereinbefore required, and showing an intention 
 to revive the same. . . ." (a). 
 
 A Will, then, can be revived in two ways only, and in ^7° ™?^ ""^^ 
 
 . . . , ■' of reviving a 
 
 either the intention to revive must clearly appear. will. 
 
 No act that a person may perform will revive a Will, if 
 the intention to do so be absent from his mind (6), and Intention, 
 this must be seen by the contents of the document which 
 he executes for the purpose of the revival, and cannot be 
 implied or proved by extrinsic evidence since the Wills 
 Act, 1838 (c). 
 
 If a codicil be executed with the object of reviving a Express words. 
 revoked Will, such codicil should contain express words 
 referring to the revoked Will, and at least importing an 
 intention to revive the same, or a disposition of property 
 inconsistent with any other intention (cZ). The merely Keferencenot 
 
 referring in a codicil to a Will by date is not suflficient to ^g^g physical 
 
 annexation. 
 {a) 1 Vict. c. 26, ij. 22. end eq^ually to implied revocations 
 
 (6) Marsh v. Marsh, 1 S\v. & Tr. and implied revivals. " Per Sir C. 
 
 528 ; 30 L. J. P. & M. 77 :— Judgt. C, ibid. 
 
 of Sir C. Cresswell. {d) In (he goods of May, L. E. 1 
 
 (c) "It appears to have been the P. & D. 575 ; 37 L. J. P. & M. 68. 
 
 object of the legislature to put an 
 
358 
 
 WILLS OF PERSONAL PKOPERTY, 
 
 Reference to 
 ■wrong Will. 
 
 Eule of 
 evidence. 
 
 Patent and 
 latent am- 
 biguity. 
 
 revive it, nor is the simple physical annexation of the 
 codicil to the Will, as by tying the two together (e). But 
 any expression in a codicil which conveys to the mind of 
 the Court, with reasonable certainty, the existence of an 
 intention on the part of a testator to revive a revoked 
 Will, will be sufficient (/). 
 
 If, in a codicil executed with a view to revive a Will, 
 the testator, by mistake, refers to a wrong Will, parol 
 evidence is inadmissible to show that the testator had 
 committed an error. 
 
 In a case always considered an authority for this posi- 
 tion, it appeared that the testator made two Wills, one in 
 1752, the other in 1756. Under a misapprehension, he 
 made a codicil to' the former, while intending it to 
 apply to the latter. Evidence was offered to show that 
 the testator had made a mistake ; but the Court, acting 
 on the legal principles of construction, properly rejected 
 
 it(^). 
 
 The rule of evidence in these cases is the same as the 
 well-known one of our Courts of Common Law, viz., that 
 where there exists a patent ambiguity in a written docu- 
 ment, extrinsic evidence is wholly inadmissible to explain 
 it ; but if the ambiguity be latent, such evidence is ad- 
 missible ; so that, unless in states of circumstances similar 
 to those we are now considering there be a latent ambi- 
 guity in the codicil, evidence of the testator's real inten- 
 tion must be excluded. 
 
 It may not be out of place here to remind the reader 
 of the distinction between a patent and a latent ambi- 
 guity, and for this purpose we will quote the lucid ex- 
 planation on the subject given by the late Mr. J. W. 
 Smith, in his well-known work on the Law of Contracts. 
 
 (e) See n. (b), p. 357. 
 
 (/) See n. (d), p. 357. 
 
 {(}) Walpole V. CholmondeUy, 7 
 T. R. 138 ; see also In the goods of 
 Chapman, 1 llol). Kcc. Rep. 1 ; and 
 In the goods of Davy, 1 Sw. & Tr. 
 262 ; 29 L. J. P. & M. 161, where a 
 
 solicitor having inadvertently in- 
 serted in the codicil the word "re- 
 voke," instead of "confirm," the 
 Court of Probate refused to hear evi- 
 dence as to the testator's intention, 
 on the gi'ound that the ambiguity 
 alleged did not exist. 
 
REVIVAL OF WILLS. 359 
 
 " A patent ambiguity is one which appears on the face Patent am- 
 of the instrument itself, and renders it ambiguous and '®'"^' 
 unintelligible, as if in a Will there were a blank left for 
 the devisee's name. 
 
 " A latent ambiguity is where the instrument itself is Latent am- 
 en the face of itself intelligible enough ; but a difficulty ^'smty. 
 arises in ascertaining the identity of the subject-matter 
 to which it applies, as if a devise were to John Smith 
 without further description. In that case, the devise 
 would be intelligible enough on the face of it, and if there 
 were only one John Smith in being, no difficulty could 
 arise. But as there are thousands, it would be impossible 
 to tell which of thern was meant without admitting verbal Vertal 
 evidence, which would accordingly be done. This would 
 be what is called a latent ambiguity, because it would not 
 appear on the face of the instrument, but would be hid 
 till evidence had been produced showing that there were 
 a great number of persons corresponding in name with 
 the devisee " (h). 
 
 Now, connecting this explanation with the circum- Application of 
 stances of Walpole v. Chohnondeley, and other similar ® °^ '°''^' 
 cases, we shall see that there is no ambiguity of any kind in 
 them, for the testator declares that the codicil he executes is 
 intended to revive a certain Will. He makes a mistake, but 
 he declares himself with no ambiguity at all, and the laws 
 of evidence will not suffer his written declaration to be 
 altered by parol statements, notwithstanding that the mis- 
 take might be strictly shown to have been made. In short, 
 " unless there be a latent ambiguity in a codicil purporting 
 to revive a revoked Will, evidence of the testator's real 
 meaning must be excluded " (Per Sir J. P. Wilde). 
 
 {h) On the subject of ambiguity but particularly see Charter v. 
 
 as occurring in a Will, read the im- Charter, a case of misnomer, L. K. 
 
 portant case of Weib v. Byng, IK. 2 P. & D. 315 ; 41 L. J. P. & M. 10 ; 
 
 & J. 580 ; affirmed in the House of afiirmed in the House of Lords, 
 
 Lords sub nom. Byng v. Byng, 10 L. E. 7 E. & I. App. 364, 43 L. J. 
 
 H. L. 171; Bernasconi v. AtUn- P. & M. 73; also 1 "Wms. Exors. 
 
 son, 10 Hare, 345 ; 23 L. J. Ch. 184, pt. 1, bk. 4, ch. 2, § 5, 352 et seqq- 
 a case of misdescription in a Will ; 
 
360 
 
 WILLS OF PEESONAL PROPERTY. 
 
 1 Vict. c. 26, .... When any Will or codicil, which shall 
 be partly revoked and afterwards wholly revoked, shall 
 be revived, such revival shall not extend to so much 
 thereof as shall have been revoked before the revocation 
 of the whole thereof, unless an intention to the contrary 
 be shown (i). 
 
 This is the latter half of the section of which we have 
 already given the former one. It simply means that if a 
 testator in the first place partially revokes, then wholly 
 revokes his Will, and afterwards revives it, the revival 
 will not include the portion he first revoked, unless he 
 indicates an intention that it shall be so included. 
 
 Applying this portion of the section to a case like the 
 following, we shall be able to see the important effects 
 which this provision is capable of producing. 
 
 Case. A. makes a Will, giving legacies to B. and C. respec- 
 
 tively. He revokes his Will as to B., and subsequently 
 revokes it altogether. He afterwards executes a codicil 
 reviving the Will, but makes no mention of B. ; ac- 
 cordingly B. loses his legacy, unless the testator expressly 
 affirms that he shall not. The writer has not been able 
 to find any case decided with reference to the second 
 clause in section 22 of the Wills Act. 
 
 Existence of There can be no revival of a Will which has ceased to 
 
 necessary, j^^^^ ^^^-j^ ^ physical and legal existence (j) ; consequently, 
 if a man has actually destroyed the fabric of his AVill, 
 aniono revocandi, he cannot revive it by any other testa- 
 mentary paper (j). 
 
 Prior to the Wills Act, 1838, codicils were held to revive 
 instruments to which they were respectively codicils, if 
 the said instruments had been previously revoked. The 
 revival was implied, which is not the case now, as "it 
 appears to have been the object of the Legislature, in 
 
 No revival 
 implied since 
 Wills Act, 
 1838. 
 
 (i) 1 Viot. c. 26, s. 22. 
 
 {j) Malev. Tolcelove, 2 Rob. Ecc. 
 Eep. 318 ; Newton v. Newton, 5 L. 
 T. 218 ; see also Sogers r. Good- 
 enough, 2 Sw. & Tr. 342; 31 L. J. 
 
 P. & M. 49 ; in wliicli Sir C. Cress- 
 well approved of the doctrine of the 
 above cases ; but declined to express 
 any opinion as to whether a WiU 
 not in esse can be revived. 
 
REVIVAL OP WILLS. 361 
 
 passing the above Act, to put an end equally to implied 
 revocations and implied revivals " (/c). 
 
 Long before the Wills Act 1838 it was held that the Codicils are 
 re-execution of a Will extended to and republished or ^it^ WiU. 
 revived all the codicils thereto, unless an intention to the 
 contrary should have appeared on the face of the instru- 
 ment (Z). 
 
 It is important to bear in mind that a codicil refemng Codicil may go 
 by date, &c., to W,— where W, has been destroyed— and ^enXu^"^ 
 which codicil the testator, forgetting the destruction of referring to 
 W,, has intended as a codicil to Wg, niay be entitled to 
 probate with such second Will (m). 
 
 The mere execution of a codicil, although it is a Codicil does 
 re-execution of the Will (»), cannot, without express addtrwiS'^ 
 reference, make that to be a part of the Will which was 
 no part of it before ; as when a Will contained the follow- 
 ing clause : " I request my trinkets shall be divided as I 
 shall direct in a small memorandam." After the death 
 of the testatrix, an unexecuted memorandum was found 
 in her handwriting disposing of certain trinkets, and it 
 appeared that it was in existence before the execution of 
 a codicil in which it was not mentioned. Held, that the 
 memorandum was not entitled to probate (o). 
 
 If a testator destroy a Will animo revocandi, the so Destruction of 
 doing cannot, since the Wills Act 1838, operate as a rcTive a former 
 revival of a former Will (Dr. Lushington) (p) ; no acts »iie revoked. 
 or declarations can revive a revoked Will, nor will parol 
 evidence be admitted to show an intention to revive (p). 
 
 By REPUBLISHING a Will was meant repeating, either Republication. 
 
 {k) Marsh v. Marsh, 1 Sw. & Ir. vening codicil, see Burton v. New- 
 
 528 ; 30 L. J. P. & M. 77. bery, L. K. 1 Ch.Div. 234 ; 45 L. J. 
 
 {I) Oroshy v. MacDoval, 4 Ves. Ch. 202 (1876). 
 
 Jur. 610; cited in Wade v. Nazer, (») Allen v. Maddoch, 11 Moo. 
 
 1 Bob. Ecc' Eep. 632 ; 6 N. C. 46, P. C. 427 :— Judgt. 
 
 by Sir H. J. Fust. See also In the (o) In the goods of Matthias, 3 
 
 goods of May, ante, p. 357, n. (d). Sw. k Tr. 100 ; 32 L. J. P. & M. 115. 
 
 (m.) Hogers v. Goodenough, supra, (p) CuUo v. Gilbert, 9 Moo. P. C. 
 
 ■a. (}). As to where a second codicil 143; 1 Vict. o. 26, ss. 20, 22; 
 
 revived a Will, but not an inter- Major v, Williamis, 3 Curt. 432. 
 
362 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Re-execution 
 is equal to 
 making a Will 
 de novo. 
 
 Re-exeoution 
 is involved in 
 
 expressly or by construction, the formal declaration which, 
 before Jan. 1, 18.38, used to be made by a testator at the 
 time of signing his Will, that the document signed was his 
 last Will and testament. Prior to that date, the term 
 signified the revival of a revoked instrument. Since the 
 Wills Act 1838, this foi-mality has been dispensed with. 
 " The object of sect. M of the Act was to get rid of 
 republication as a method of conferring testamentary 
 validity, even as regards a Will made before the date of 
 the Act, and not to extend its operation to Wills made 
 since the Act " (Lord Penzance) (g). 
 
 The statute in question enacts, that Wills made before 
 1838 shall be exempted from its operation, but proceeds, 
 to declare that if a Will made before that time is repub- 
 lished, it shall be deemed to have been made at the time 
 of its republication, consequently such Wills are brought 
 within the operation of the Act. 
 
 For the term republication then we must now substitute 
 that of re-execution, although the former is now occa- 
 sionally used ; yet really, since the Wills Act 1838, there has 
 been no such thing as the republication of a Will (r), the 
 execution of a codicil being equivalent to the re-execution 
 of a Will, if the act be done with such intention, or rather 
 perhaps without any contrary intention (s). 
 
 " It has long been settled that the republication of a 
 Will is tantamount to the making of that Will de novo ; 
 it brings down the Will to the date of the republishing, 
 and makes it s^eak as it were at that time. In short, the 
 Will so republished is a new Will " (t). 
 
 " It is plain, on the one hand, that the republication of 
 
 {q) Noble v. Willock, 40 L. J. P. 
 & M. 60. 
 
 (r) In re Earl's Trusts, 4 K. & J. 
 673 ; In the goods of Lady Truro, 
 L. K. 1 P. k D. 201 ; 35 L. J. P. & 
 M. 89. 
 
 (s) Anderson v. Anderson, L. E. 
 13 E^. 381 ; 41 L. J. Ch. 247. See 
 
 Shinner v. Ogle, next page. 
 
 (t) 1 Wms. Exors. pt. 1, bk. 2, 
 ch. 4, § 2, p. 216. But a codicil 
 does not, for all purposes, republish 
 a "Will so as to make it speak at the 
 time of the testator's death. Still- 
 well V. Mellersh, 26 L. J. Ch. 356 ; 
 Judgt. of Lord Cranworth, L. C. 
 
REVIVAL OF WILLS. 363 
 
 the Will, -whicli is involved in the execution of a codicil, execution of 
 may have the effect of adding something to the Will, '^°'''"'- 
 which formed no part of it when executed, and which is 
 not to be found in the codicil itself. The case of In the 
 goods of Wyatt {u), in which the codicil was held to give 
 effect to alterations made in the Will after its execution, 
 is a direct authority for this proposition. On the other 
 hand, it is plain there must be a very distinct limit to the 
 action of the Court in this direction. For the tendency 
 of such a doctrine, if not restrained, would be to place un- 
 executed papers on the same footing with those which 
 have received due execution, merely because they were in 
 existence at the subsequent date of the execution of the 
 codicil " (v). 
 
 It is seen from this statement that while the leaning of 
 the Court is to further the wishes of a testator as far as 
 possible, yet its intention to discourage carelessness is 
 evident ; consequently, the doctrine enunciated in The 
 goods of Maihias {x) should be well considered in con- 
 junction with the above remarks of Sir J. P. Wilde. 
 
 Wyatt's case (y) was this : — In April 1847, he executed a Goods of 
 draft WiU, in which, after his death, were found interlinea- ^" *" 
 tions and cancellations, some in ink, and some in pencil. 
 In May, 1847, he executed an engrossed Will, and in 1854 
 he executed a codicil, which pui-ported to be a codicil to 
 the first Will. It appeared that the second Will was 
 transcribed from the first one, and that the later paper 
 corresponded with the former as to those parts where it 
 was altered in inJe, consequently showing that the second 
 Will was altered before the date of the codicil. The Court 
 granted probate of the second Will and of the codicil. 
 
 In the judgment of Sir H. J. Fust, in the important SHnner v. 
 case of SJdnner v. Ogle (z), that learned judge said : — " It ^ "' 
 
 (u) 2 Sw. & Tr. 494 ; 31 L. J. P. 115 ; decided by Sir C. Cresswell. 
 
 & M. 197. " {y) See n. (u), supra. 
 
 [v) In the goods of Lady Truro, (s) 4 N. C. 79, 1. Eob. Ecc. Eep. 
 
 supra, n. (r). 363. (1845.) 
 
 (x) 3 Sw. & Tr. 130 32 L. J. P. 
 
364 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Codicil is 
 primd facie 
 re-execution. 
 
 Eevised Will 
 operates from 
 date of revival. 
 
 " Distinct 
 reference." 
 
 is not necessary in order to republish a Will by a codicil, 
 that the codicil should expressly show an intention to re- 
 publish ; that is a question of law. A codicil forms part 
 of the Will, and the codicil gives operation to the Will to 
 make it speak from the day the codicil is executed which 
 republished the Will. It appears clear from the Act of 
 1838, that where a Will is followed by the execution of a 
 codicil, the codicil itself is a republication of the Will 
 unless a contrary intention shall appear on the face of 
 the codicil itself. The general rule is clear. I con- 
 sider that every codicil is primd facie a republication of 
 the Will, and I am not aware of any case that militates 
 aigainst this position. ... I hold it to be clearly 
 established by the cases under the old law that the execu- 
 tion of a codicil was a republication of the Will, whether 
 the codicil referred to it specifically or, not, or ratified 
 the Will or not, and that it made the Will speak from 
 the date of republication. Has the Wills Act 1838 
 altered the law in this respect ? Quite the contrary ; for 
 it declares that a Will republished shall operate from the 
 date of its republication." 
 
 A very important point to remember is this : — If a 
 distinct reference be made in a codicil to a last Will and 
 testament, and only one Will can be found, this must be con- 
 sidered to be the paper to which the codicil had reference (a). 
 The case of Allen v. Maddoch, wherein this point appears, 
 was as follows : — A married woman having power under a 
 settlement to make a Will, in the year 1851 made a testa- 
 mentary instrument in her own handwriting, which she 
 intended to operate as a Will, but which was not attested 
 according to the requirements of the Wills Act, 1838. In 
 1856, she duly executed a codicil, which was headed, 
 " This is a codicil to my last Will and testament." This 
 codicil contained no reference to the testamentary paper 
 
 {a) Allen v. Maddock, 11 Moo. 
 P. C. 427 ; and with this read the 
 Judgt of Sii- J. P. "Wilde In the 
 
 goods of May, L. R. 1 P. & D. 575 ; 
 37 L. J. P. & M. 68 ; also HaU v. 
 Tokdove, 2 Roh. Eoc. Rep. 326. 
 
REVIVAL OF WILLS. 365 
 
 of 1851, which was not produced at the time the codicil 
 was executed, but was found after the death of the tes- 
 tatrix in a trunk in a room of her residence, enclosed in a 
 sealed envelope, on which was endorsed, " Mrs. Anne 
 Foote's Will." The codicil was found in a drawer in her 
 bed-room. No other testamentary paper was found. 
 IfeM,' affirming the decree of the Prerogative Court : — 
 
 1. That as there was a distinct reference in the codicil 
 
 to a " last Will and testament," and as no other 
 Will had been found, the paper of 1851 was by 
 parol evidence sufficiently identi6ed as the "last 
 Will, &c.," referred to by the codicil of 1856. 
 
 2. If capable of identification, it is necessarily a subject 
 
 for the admission of parol evidence, and such 
 evidence is not excluded by the Wills Aet, 1838. 
 
 It appears from this case that the mere mention by a Mere men- 
 codicil of a Will, and that too of an imperfectly attested |jy ^ ooiicil^ 
 Will, is considered to be a, distinct reference to it, and ™*y ^ <i's- 
 also that, to establish such a codicil, parol evidence is 
 admissible. Of course, the intention, not the language, of 
 the testator must be the guide of the Court in such 
 cases (&). 
 
 Just as a revoked Will may be revived by a subsequent A revoked 
 codicil (c), so also a codicil may be revoked and revived revived'by^a ^ 
 by a later similar instrument ; but here again the tes- l^^r codicil, 
 tator's intention is the first consideration in determining tention to do so 
 whether a subsequent codicil revives a previously revoked ^^'^*^' 
 one. The following case is in point : — A. executed a Will 
 in 1866 (Wi), appointing B. his executor and residuary 
 legatee; and in 1871, added thereto a codicil (Cj). In 
 1871 also, he executed another Will (Wj), in terms re- 
 voking all other Wills and codicils. In 1872, he made a 
 codicil (C2), purporting to confirm the appointment of 
 B. by the Will of 1866. On these facts a question arose 
 as to whether (Cj) was revived or not, and Sir James 
 
 (6) Payne and Meredith v. Trap- (c) 1 Vict. c. 26, s. 22. 
 pes, 1 Kob. Ecc. Rep. 583 :— Judgt. 
 
366 
 
 WILLS OF PERSONAL PROPERTY. 
 
 The force of 
 intention in all 
 
 cation or 
 revival of 
 
 testamentary 
 
 Hannen held that it was not. The learned judge was of 
 opinion that (Cj) expresslj'^ referring to (Wi), revived 
 that instrument which had been revoked by (Wj). There 
 was no evidence to show that the testator meant to 
 revive (Ci), and, accordingly, probate was granted of 
 (W,)and(C.). 
 Here is another case illustrative of the force of inten- 
 Mts puroortine ^^^^ ^^ ^^^ ^'^^^ which appear to be revocations or revivals 
 to be in revo- of testamentary instruments, and with which we will con- 
 clude the present chapter. In January, 1860, A. made a 
 Will (Wj), and in August of the same year he married. 
 This of course revoked the Will (d) ; but on the day of 
 his marriage he executed a second Will (Wj), in terms 
 revoking the former one. A month after he tore from 
 (Wi) his signature, and in July, 1861, he made a codicil, 
 described as being " to the last Will and testament of me, 
 John May, and which bears date the 11th of January, 
 1860." Here there was a mistake, apparently obvious ; 
 but yet, if the codicil, on the face of it, had shown an 
 intention of the testator to revive (Wj), which had been 
 doubly revoked, the Court must have decided in con- 
 formity with such intention. The surrounding circum- 
 stances of the case, however, added to the fact that the 
 codicil indicated no design on the part of the testator to 
 revive (Wj), guided the Court to its decision, namely, to 
 grant probate of (Wj), together with the codicil of July, 
 1861 (e). 
 
 {d) 1 Vict. c. 26, s. 18. 
 
 (c) In the goods of May, ante, 
 p. 364, n. {a). In a very recent case 
 a man having made a Will, married, 
 and then revived Ms Will hy o, 
 codicil, which he appears to have 
 destroyed, Sir J. Hannen granted 
 
 prohate of the Will and a draft of 
 the codicil, due execution of hoth 
 papers having heen proved. James 
 V. SJirimpton, 45 L. J. P. D. & A. 85. 
 The learned Judge held that there 
 was no revocation of the Will, the 
 intention to do so heing wanting. 
 
CHAPTER VII. 
 
 CONCERNING THE TESTAMENTARY POWER. 
 
 We have now to consider as to what persons may or may The law 
 not successfully make a Will, and as the testamentary testamentary 
 power is withheld from few only, we shall probably best i'"^®'' *""" 
 
 r ^ ^ _ •" J. ^ •! tew persons. 
 
 pursue our inquiry on this subject by observing who are 
 
 incapacitated in this respect, or whose Wills, if made, are 
 
 deemed invalid. 
 
 By the law as it now stands, the WiUs of all persons ^^o may not 
 
 make a Will 
 under the age of twenty-one, married women, by the 
 
 general rule of law, lunatics, and non compotes generally, 
 
 persons under the dominion of fear, fraud, or undue 
 
 iufluence, are absolutely null and void. 
 
 No Wills made by infants — unless they happen to be infants, 
 soldiers or sailors in actual service (ct) — made since the 
 1st of January, 1838, are valid (b), nor can an infant now 
 appoint a testamentary guardian of his children, nor 
 exercise any Power of appointment by Will (c). 
 
 By the Common and also by the Civil Law, males of the Common and 
 age of fourteen, and females of the age of twelve, were 
 permitted to bequeath their personal property, but no 
 person under twenty-one, could devise realty, except by 
 virtue of some special custom (d). 
 
 Full age is attained the day before the anniversary of a J^^"^ full age 
 person's twenty-first birth-day. Accordingly, a person 
 born on the 1st day of January, 1870, before midnight, 
 
 (a) 1 Vict. c. 26, s. 11; In the is "actual service,'' see a»<e, p. 272. 
 goods ofFa/rq%har, 4 N. C. 651 ; In, (S) 1 Viet. c. 26, s. 7. 
 
 the. goods of M'Mwrdo, L. R. 1 P. & D. (c) Sug. P. 178. 
 
 540 ; 37 L. J. P. & M. 14. As to what (d) 2 Black. Com. 375, 497. 
 
368 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Married 
 "women. 
 
 Husband and 
 wife often re- 
 garded in 
 equity as dis- 
 tinct persons. 
 
 Equity permits 
 a married 
 woman to 
 make a Will. 
 
 Testamentary 
 capacity of a 
 married woman 
 unaltered by 
 the Wills Act, 
 1838. 
 
 Lord West- 
 bury's opinion. 
 
 Followed in 
 NohU T. 
 WUkck. 
 
 will reach his majority for all purposes on the first minute 
 of the 31st day of December, 1890, since the law takes 
 no cognizance of a frac^on of a day (e). 
 
 When it is said that a married WOMAN, or as she is 
 commonly called in law, a feme coveH, cannot make a 
 Will, this statement must be taken to be merely an 
 enunciation of the doctrine of the Common Law on the 
 subject. For although such is undoubtedly the general 
 rule of law even now — or perhaps, to speak more accu- 
 rately, was, until the Judicature Act 1873, which declares in 
 sect. 25, sub-sect. 11, that the rules of Equity are forth- 
 with to prevail over those of the Common Law in matters 
 not specifically mentioned in the Act — ^yet the old doctrine 
 as to the complete merger of the wife's rights in those of 
 her husband has in Equity been gradually lost sight of, 
 and .at an early period of its existence, the Court of 
 Chancery regarded husband and wife for several purposes 
 as distinct persons. 
 
 Thus Equity permits married women in certain cases to 
 make their Wills, which being so, we must now see what 
 the position of these persons is, in the view of that system 
 of judicature, with regard to their testamentary capacity. 
 The Wills Act of 1838, has, according to Lord Westbury, 
 preserved the legal testamentary status of a married 
 woman who has attained the age of twenty-one, exactly as 
 it stood before that statute was passed. In the words of his 
 lordship, " a married woman acquires no enlarged capacity 
 from the statute, although her testamentary instrument or 
 Will, where made, may have the benefit of more liberal 
 rules of interpretation (/). 
 
 The latter part of this dictum may perhaps be open to 
 question, but the former was abundantly confirmed by the 
 judgment of the House of Lords, in the interesting and 
 important case oi Noble v. Willoch (g), unanimously decided 
 
 (e) Bac. Abr. Tit. Infancy (A). 
 (/) Thomas v. Jones, 1 De G. 
 J. & S. 81, 63 ; 32 L. J. Ch. 139. 
 
 (g) L. E. 7 H. L. 58 ; 44 L. J. 
 Ch. 345. 
 
CONCERNING THE TESTAMENTARY POWER. 869 
 
 by Lord Cairns, C, and Lords Chelmsford and Hatherley, 
 March 18, 1875. 
 
 Lord Chelmsford thus perspicuously re-echoed the above Lord Cheims- 
 opinion of Lord Westbury. " The section (A) has neither an 5°^^^™*''^ 
 enabling nor a disabling effect. It leaves the married 
 woman exactly in the same state of testamentary capacity 
 or incapacity in which she stood before the passing of the 
 Act." Lord Hatherley also observed that this was the Lord 
 view he expressed when deciding Thomas v. Jones, in the ** ^^ ^^' 
 first instance, and that he now held it " the more con- 
 fidently since it had been affirmed by Lord Westbury." 
 
 With regard to the expression " testamentaiy status of Expression 
 a married woman," used above, it may be remarked that, sta^STmrn- 
 strictly speaking, even now, she has no such status at all, "ed woman " 
 since her right to make a Will is a decided innovation upon 
 the general law of the land, and, whenever it exists, is an 
 exceptional, accidental, or dependent right. But be this 
 as it may, Courts of Equity have for so considerable a 
 period of time acknowledged its validity under certain 
 circumstances, that this fact, viewed in conjunction with 
 the terms of a recent legislative enactment (i), to be re- 
 ferred to again presently, would seem now to warrant the 
 use of the word status as employed by Lord Westbury. 
 
 Now, what was the position of a married woman by law Testamentary 
 before the Wills Act of 1838, as to her ability to make a mamedwoman 
 WiU ? It was this : her devise of realty was, by 34 & 35 ''«*"« i^^^. 
 Hen. VIII. c. 5, void (j) ; but this statute having been passed 
 at a time when the doctrine of a married woman's separate 
 estate was unknown to the law, cannot be taken to affect 
 the after-established feature in our jurisprudence (1 L. C. 
 Eq. 492 ; and read Lord Westbury's judgment in Taylor 
 V. Meads, 34 L. J. Ch. 206) ; and at Common Law, her 
 testament of chattels was, and is void on the principle 
 that her existence being merged in that of her husband, 
 
 (h) 8 of 1 Vict. 0. 26. {j) Repealed by 1 Vict. c. 26, a. 2, 
 
 (i) 33 & 34 Vict. o. 93, Married itself repealed ty 37 & 38 Vict. c. 35, 
 
 ■Women's Property Act, 1870. witliout reviving tlie Act of H. YIII. 
 
 Amended 37 & 38 Vict. c. 50. 
 
 B B 
 
370 
 
 WILLS OF PERSONAL PROPEETY. 
 
 Modification of 
 the foregoing 
 rules. 
 
 Past and 
 present testa- 
 mentary power 
 of 3, feme 
 covert. 
 
 she has no separate disposing or contracting power over 
 any property whatsoever (/<;). 
 
 These rules of law, however, have been gradually and 
 considerably modified so as to meet the necessities of 
 advancing civilization, and the exigencies arising from a 
 consequent increase in the artificial character of society. 
 Accordingly, without attempting here to trace the progress 
 of the changes in question, we will state that from a very 
 distant period it was settled law that a married woman was 
 able to make a Will under the following circumstances : — 
 (1.) If she possessed separate estate (I) ; 
 (2.) By the license, assent, or agreement of her husband. 
 Now "without any actual conveyance, assign- 
 ment, or other instrument " (m). 
 (3.) In the exercise of a Trust or Power, whether over 
 
 realty or personalty (n). 
 (4.) By virtue of a covenant in her marriage settle- 
 ment (m), or by any agreement made after 
 marriage for valuable consideration, which would 
 be tantamount to the possession of a Power (o). 
 (5.) She might have made aWiU if she herself were 
 executrix of another Will, with a view of bestow- 
 ing her representative character on another person, 
 for the purpose of keeping alive the " chain of re- 
 presentation " to the original testator (p). 
 
 31 L. J. Ch. 732 ; 32 L. J. Ch. 139. 
 
 (Jc) See 2 Black. Comm. 498 ; 1 
 Wms. Exors. pt. 1, bk. 2, oh. 1, s. 2, 
 51 ; Steadman v. Powell, 1 Add. Ecc. 
 Eep. 68 ; also Price v. Parker, 16 
 Sim. 198 ; 17 L. J. Ch. 898 : referred 
 to hy Lord Penzance, J. 0., in Nolk 
 V. WillocJc, when that case was before 
 the Court of Probate ; 40 L. J. P. 
 & M. 60. 
 
 (l) Fettiplace v. Gorges, 1 Ves. 
 Jun. 46; Sturgis v. Corp, 13 Yes. 190. 
 
 (m) Peacock v. Monk, 2 Ves. sen. 
 191 ; see Pride v. Bubb, T/. K. 7 Ch. 
 64 ; 41 L. J. Ch. 105. But see post, 
 381, 382. 
 
 ■ («.) Sug. P. 153. Thomas Y. Jones, 
 2 J. & H. 475 ; 1 De G. J. & S. 63 ; 
 
 (o) 1 Eop. Hus. and "Wife, o 5, 
 s. 2, 172 n. (a) ; 2 Id. c. 19, s. 3. 
 
 (p) Birkett v. Tandercom, 3 
 Hagg. Ecc. Eep. 760 (1833) ; Barr 
 V. Carter, 2 Cox, 429. What is 
 meant by the phrase "chain of re- 
 presentation " will easily be seen by 
 an example :— B. is the executor of 
 A. and takes probate of his Will. 
 C. is the executor of B., and also 
 takes probate : he is therefore the 
 executor of A.'s Will also. See In 
 the goods of Perry, 2 Curt. 665 ; 
 21 & 22 Vict. c. 95, s. 16. 
 
 N.B. 'ReadNoMev. WUlock,L.'R. 
 7 H. L. 680 : 44 L. J. Ch. 345. 
 
CONCERNING THE TESTAMENTARY POWER. 371 
 
 In any of the above casea, then, a married woman may 
 now make a "Will as she might have done before January 1, 
 1838, and in one or two others also ; still the general rule of 
 law — which, however, seems likely to be soon merged in the 
 exceptions thereto, if, indeed, such be not the case already 
 — is, we repeat, that a married woman cannot make a Will. 
 
 The broad rule of Equity at the present day on the Broad rule of 
 subject oi a, feme covert's separate estate is, that if realty gXediof 
 or personalty be devised, bequeathed, or settled for her '^fe's separate 
 sole use and benefit, and independently of her husband, 
 she has the same power of disposing of it by "Will, or other- 
 wise, that a feme sole has, unless the contrary be expressed 
 in, or can be fairly inferred from, the instrument which 
 gives her such property {q). Accordingly, all the savings 
 of her separate estate are necessarily hers also (r). 
 
 "With regard to realty, it matters not whether the pro- Real property, 
 perty consist simply of an equitable fee — that is held by 
 trustees, a trustee, or a husband in trust — or otherwise, or 
 whether the married woman may happen to possess a Power 
 of appointment over it, the full jus disponendi belongs to 
 her, precisely as if she were a single woman, if not restrained 
 from alienation. " The whole matter," said Lord Westbury 
 in Taylor v. Meads, 34 L. J. Ch. 207, " lies between a mar- 
 ried woman and her trustees ; and the true theory of her 
 alienation is [where trustees exist], that any instrument, 
 be it deed or writing, when signed by her, operates as a 
 direction to the trustees to convey or hold the estate 
 according to the new trust which is created by such 
 direction. This is sufficient to convey the feme covert's 
 equitable interest. When the trust thus created is clothed 
 by the trustees with the legal estate, ithe alienation is 
 complete at law and equity." 
 
 (q) St. Eq. Jm-. § 1390 ; 2 Sp, case of Sulmie v. Tennmt, 1 X. C. 
 
 Eq. Jur. C. C. 506, 607 ; Taylor v. Eq. 481, and the notes thereto. 
 
 Meads, 34 L. J. Ch, 203. (De- (r) Sutler v. Oumpston, L. R. 7 
 
 cided by Lord "Westbury, C.) Eq. 16; 38 L. J. Ch. 35. See post, 
 
 Pride V. BuU, L. E. 7 Ch. 64 ; 41 374, n. (6). 
 L. J. Ch. 105 ; and see the leading 
 
 B B 2 
 
372 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Words re- 
 quired to be 
 used by donor 
 or settlor. 
 
 Examples. 
 
 Successful 
 ■words of 
 creation. 
 
 Intention of 
 donor or settlor 
 must clearly 
 appear. 
 
 Trustees not 
 required in the 
 creation of 
 separate estate. 
 
 As to what words in an instrument will confer separate 
 estate upon a married woman, the general rule is, that no 
 specific words are requisite, but the expressions employed 
 for the purpose, although not of any particular form, yet 
 ought to be unequivocal and precise, indicating a clear in- 
 tention that the husband is to be excluded from his marital 
 and legal rights, which otherwise will remain in force. 
 
 The following are extracts from directions which were 
 held not suflficient to create a separate estate : — 
 " to pay to her " — 
 " to her and her assigns " — 
 " to her use " — 
 " to her own use " — 
 
 " to pay into her own proper hands for her own use," 
 
 or, in case of a direct gift to a woman, " for her sole 
 
 use and benefit," where she is single, or when the 
 
 testator is her husband (s) ; although a gift in trust 
 
 to a married woman in the above terms would create 
 
 a separate estate (s). 
 
 Such expressions as the following will create a separate 
 
 estate : — . 
 
 "for her own use and benefit, independent of her' 
 
 husband " — 
 " to receive and enjoy the profits " — 
 " her receipt to be a sufficient discharge," 
 and indeed any others which strongly show an intention 
 on the part of a testator, or settlor, that the property is to 
 be enjoyed by the woman not subject to any interference 
 or direction of her husband. 
 
 It was once thought that a wife's separate estate was 
 dependent for its validity upon the existence of trustees, 
 but the intervention of trustees, although usual and 
 desirable, has not been necessary for this purpose since the 
 year 1725 (t). A husband, however, in possession of such 
 
 (s) Sm. Man. Eq. Tit. 5, .i. 3, Britten, I D. J. & S. 649. 
 s. 3, Married Women ; citing Gil- (t) Bermet v. Davis, 2 P. "Wms. 
 bert V. Leims, 1 D. J. & S. 38; 316(1725); aeeaiso, ffally. Water- 
 Si L. J. Ch. 347 ; and Green v. house, 5 Giff. 64. 
 
CONCERNING THE TESTAMENTARY POWER. 373 
 
 property will be deemed in Equity a trustee for his wife 
 for her protection (u) ; but she may by her mode of dealing 
 with her husband cause a presumption to arise that she 
 has exonerated him from the trust, so as to debar herself 
 from recovei-ing from his estate money spent by him be- 
 longing to her (v). 
 
 Separate estate may be given to a woman by her Separate estate 
 husband — by the limitation of a use to her, or through the to^a ipoinar" 
 medium of trustees (x) — or by any other person either before ^^i°^e or after 
 
 r^ ■ A J. 1 1 J marriage. 
 
 or after marriage, and any property, real or personal, de- 
 vised, bequeathed, or granted to or settled on a woman will 
 be considered in Equity and also at law, as her separate 
 estate, provided the intention of the testator, grantor, donor, 
 or settlor be clear that the property is so to be considered. 
 
 Before the "Married Women's Property Act" (y), a "Married 
 
 W^OTTIGTI S r 1*0- 
 
 woman, except by what is called the custom of London, pertyAct" 
 could not carry on a business and enioy the profits thereof ^^"^^ ^ 
 
 ici 11 11 11 1 women to trade 
 
 iijdependently of her husband ; but now she has the power on their own 
 to do so, and all the money which she may acquire there- 
 by, with all her wages, earnings, &c., gained by her in any 
 employment or trade, ai'e her own, which she may dis- 
 pose of as if she wei'e a single woman, for such earnings, 
 profits, &c., are by the Act declared to be her separate 
 estate (s). 
 
 (m) Bennet v. Davis, supra ; Lewin on Trusts, oh. vi. p. 61, 
 Rich V. CocMll, 9 Ves. 369 ; New- text and note (J), where he cites 
 lands V. Paynter, 10 Sim. 377. In Grant v. Orant, 34 Beav. 623 ; 34 
 the latter of these cases, It was de- L. J. Oh. 641 ; Morgan v. MaUeson, 
 cided that where personal chattels L. E. 10 Eq. 475, and to the con- 
 are bequeathed to a single woman for trary, Wa/rrinsr v. Rogers, L. E. 
 her separate use, hut without the 16 Eq. 349 ; 42 L. J. Oh. 581. Read 
 intervention of a trustee, they can- also/rare Gadbv/ry, 32 L. J. Ch. 780. 
 not he seized in execution by a (y) 33 & 34 Vict. c. 93 ; amended 
 judgment creditor of an after-taken 37 & 38 Vict. c. 50. See Mr. J. E. 
 husband. (See this same case re- Griffiths' Treatise on this Act, 3rd 
 ported in 4 My. & Or. 408.) edition. As to the mode in which 
 
 (v) Qwrdner v. Gardmer, 1 Giff. this Act is to he construed, see 
 
 126; 28 L. J. Ch. 903, and the Howard\.TheBanlcof England,!!. 
 
 cases there cited. E. 19 Eq. 295 ; 44 L. J. Ch. 329. 
 
 (x) As to gifts by a husband to (a) Sect. 1. 
 his wife, see 1 L. C. Eq. 494 ; also 
 
 account. 
 
^T'i WILLS OF PERSONAL PROPERTY, 
 
 Equity en- Long before the above Statute, however, Equity, in the 
 
 contracts^of exercise of its peculiar power of permitting and upholding 
 
 married per- agreements between married persons, considered a con- 
 sons before the ° ^ ■ i j. j ■ j. i 
 Act. tract, whether pre-nuptial or post-nuptial, entered into by 
 
 a husband with his wife to allow her to carry on business 
 
 in her own name and for her own benefit as binding upon 
 
 and enforceable against the husband, and other persons 
 
 claiming through him (a). 
 
 Savings of Not only has a married woman the power to dispose of 
 
 estate!** or bind in any way (6) the capital itself of her separate 
 
 estate just as she pleases, — unless the instrument giving 
 
 it contain a clause of restraint, — ^but also the same power, 
 
 savings, and accumulations which she may have acquired 
 
 therefrom, equity regarding these as part of the property 
 
 whence they were derived (&). 
 
 Marriedwoman But where, after the death of a married woman pos- 
 
 ^oBei^oUept- sessed of separate estate a sum of money was found 
 
 rate estate. secreted in the house of her surviving husband, and no 
 
 evidence concerning it was forthcoming, the Court of 
 
 Chancery held it to be property of the husband (c). 
 
 Clause of re- We have spoken above of "a clause of restraint" in 
 
 straint against , ■ , , n ■ i ■ _l j. x 
 
 anticipation the instrument which gives a woman separate estate, 
 and alienation, ^pj^jg provision is commoDly designated restraint on anti- 
 cipation, and since the time of Lord Chancellor Thurlow 
 — who was the first to devise the provision in question (d) 
 Oan only affect — it has been usual to insert it in settlements of property 
 to a, feme given to the separate use of a married woman. This pro- 
 covert. hibition against alienation is valid whether the property 
 
 be given to a woman actually married or &.■ single woman 
 contemplating marriage, but it can only be imposed in 
 
 {a) See Slanning v. Stylo, 3 P. (c) Hwnvpkery v. BicTiards, 25 L. 
 
 ■Wma. 336. Where a verbal agi-oe- J. Ch. 442. 
 
 ment was upheld by Lord Chan- (d) In the case of Miss Watson's 
 
 oeUor Talbot, on the gi'ound that it Settlement, mentioned in Brandon 
 
 was " a reasonable encouragement v. Sobinson, 18 Ves. 434. See Lord 
 
 of the wife's frugality." Westbury's Judgt. in Taylor v. 
 
 (6) Wiltony.mil,25L.J.Ch.U6. Meads, 34 L. J. Ch. 207; also 
 
 But there was no clause of restraint Parkes v. White, 11 Ves. Jun. 209, 
 
 here; and sec ante, p. ?71, n. {r). 221. 
 
CONCERNING THE TESTAMENTARY ROWER. 375 
 
 either of these two cases, for discoverture determines the 
 restraint (e) until another marriage (/), and we need 
 hardly add that the clause would be void in any gift 
 made to a man. 
 
 Although, as previously stated, no particular words are No form of 
 necessary to express the imposition of this restraint, yet ^°y*iQ°rrmm 
 should litigation arise upon the matter in question, the this clause. 
 intention of the donor of the property, as gathered from 
 the terms of the instrument which creates the separate 
 estate, will guide the Court in coming to a decision on 
 the subject. 
 
 The object of the restraint upon anticipation is, in the objects of the 
 first place, to protect the property of a wife from her ^j^*s*^°'°^ 
 husband's undue influence and Common Law right; 
 secondly, to deter her from expending or mortgaging her 
 income before it accrues due ; and, thirdly, to prevent a 
 feme covert from alienating her estate altogether. This Power of the 
 design, should there be any attempt to frustrate it, may jaft;(.e°tTen- 
 be indirectly accomplished by the aid of the High Court force clause of 
 of Justice, in its Chancery Division, for although the Court 
 can, as against the separate estate of a married woman, 
 enforce her obligations, yet any improper interference 
 with it by her husband or other persons, whether there 
 be a clause of restraint or not, may be stopped by an in- 
 junction from the Court against them. But the Court is The Court can- 
 powerless to remove the restraint against alienation and thig'^^^triction 
 anticipation when once it has been imposed {g), even from a married 
 though by so doing benefit might result to the /erne covert even with a ' 
 herself, as where by conveying an interest which was fet- fiew to her 
 
 111 . . 1 . , . , benefit. 
 
 tered by the restraimng clause, a married woman might 
 
 have secured a legacy in consideration of so doing Qi). The Reason for 
 
 this. 
 
 (e) Tullet V. Armstrong, 1 Beav. Beav. 214 ; affirmed 6 De G. M. k 
 
 1;5L.J. 303;81d. r9;butsee9L.J. G. 535; 25 L. J. Ch. 386, by the 
 
 Ch. 41:— Judgt. ofLordCottenham. full Court of Appeal, Lord Cran- 
 
 (/) OZar-AjT. Jacjues, IBeav. 36 ; worth, C. ; Knight - Bruce and 
 
 4 Beav. 319 ; 8 L. J. Ch. 25 ; Dixon Turner, LL. JJ. (1856.) 
 V. Dixon, 1 Beav. 40 ; 8 L. J. 25. Qi) Tullelt v. Armstrong, 1 Beav. 
 
 (?) EoUnson v. Wheelwright, 21 1 ; Judgt. 4 Myl. & Cr. 377. 
 
376 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Subsequent 
 marriage may 
 revive re- 
 traints ; 
 
 but not neces- 
 sarily. 
 
 Fund being in, 
 statu, quo 
 causes re- 
 straints to 
 revive on sub- 
 sequent mar- 
 riage. 
 
 Liability of 
 separate estate 
 for ordinary 
 engagements. 
 
 principle of the present and similar cases was thus ex- 
 pressed by the Lord Chancellor : — " It has been argued 
 that the restraint upon alienation was a creature of the 
 Court of Chancery, and being imposed by the Court, might 
 be taken away for the benefit of a married womaiL This 
 is a fallacy. It is a restraint imposed, not by the Court, 
 but by the author of the gift. The power to impose 
 restraint is a creature of this Court, but the restraint (A) 
 itself is always imposed by the settlor." 
 
 The very nature of the doctrine of a wife's separate 
 estate, which was allowed to arise for her protection, shows 
 this ; indeed the term itself implies that the determina- 
 tion of coverture puts the /erne covert into the position of 
 a /erne sole, that is, she at once becomes possessed of full 
 power of alienation. 
 
 It is possible, however, for a woman to again limit her 
 power by contracting another marriage Qi) ; but, on the - 
 other hand, she may, probably, during her discoverture, 
 commit acts in reference to the property, which may have 
 the effect of completely annihilating the restraints an- 
 nexed thereto, and so preventing their revival under any 
 circumstances ; for instance, by selling out her trust stock 
 when siii juris, and re-investing the proceeds (i), these 
 latter mtist, then, notwithstanding the previous restraint, 
 become her absolute property, though this ceases to be the 
 case were she to man-y again, for the fund would still be in 
 the position in which it was at her husband's death (Jc). 
 
 It would be foreign to the object of the present treatise 
 to consider the question of the liability of a married 
 woman's separate estate for her ordinary engagements, 
 but for full information on this and kindred points, the 
 reader is referred to the great case of Johnson v. Galla- 
 gher {I), referred to and followed by the Judicial Com- 
 
 (A) See note (fe), p. 375. 
 
 (i) WrigM v. WrigU, 2 J. & H. 
 647. There were no trustees in 
 this case. 
 
 (Tc) See Newlands v. Paynter, i 
 My. & Cr. 40S :— Judgt. 
 
 {I) 3 De G. F. & J. 502 ; 30 
 L. J. Ch. 298. 
 
COlfCEENING THE TESTAMENTARY POWER. 377 
 
 mittee of the Privy Council in that of the The London 
 Chartered Bank of AustraUa v. Lempriere (m), where all 
 the authorities on this subject are discussed. 
 
 The elementaiy learning on the subject of a married 
 woman's separate estate is well set out in Mr. F. O. 
 Haynes' justly popular " Outlines of Equity," Lecture VII., 
 while that particular incident in connection therewith, 
 which is more germane to the object of this treatise, 
 namely, the power possessed by her of disposing of her 
 separate estate by Will, is also lucidly described in Vol. I. 
 of the Leading Cases in Equity. In addition to these 
 works, the reader may profitably peruse the tractate of 
 Mr. Sweet on "A Wife's Separate Estate.' (1840.) 
 
 The learned compilers of these L. C, in their notes to the Power of mar- 
 case of Huhne v. Tenant (n), state that " it has been estab- dispose of her 
 lished, ever since the case of Fettvplace v. Gorges (o), that ^f,"™"^^ ^^ 
 personnal property settled upon a feme covert to her separate 
 use is to be enjoyed with all its incidents ; and as the^'us 
 disponendi is one of them, she may, although there is no 
 express power of disposition given to her, dispose of it, 
 either by acts inter vivos, or by Will ; and the power of a 
 married woman to dispose of personal property settled to 
 her separate use extends to interests in reversion as well 
 as those in possession," assuming that there be no clause 
 of restraint in the instrument conferring the estate. 
 
 As to real estate (p), " the result of the recent authorities, Her power 
 establish as a general proposition that a married woman ^^^ estate. 
 having real property settled to her separate use in fee, 
 and not restrained from alienation, has as incident to her 
 separate estate, and without any express power, a com- 
 plete right of alienation by instrument inter vivos (not 
 acknowledged under the Fines and Recoveries Act (q) ), or 
 
 (m) L. R. 4 p. C. 672 ; 42 L. J. C. C. 8. 
 P. C. 49. See also Mayd v. Field, {p) Read the Judgt. of Lord 
 
 L. R. 1 Ch. (N. S.) 587 ; 45 L. J. Hatherley, C, in Pride v. Subb, 
 
 Ch. 699. ante, p. 370, u. (m), a very strong 
 
 (n) P. 488. case. 
 
 (o) 1 Ves. Jun. 46 ; S. C, 3 Bro. (?) 3 & 4 W. 4, c. 74. 
 
378 
 
 WILLS OF PERSONAL PROPERTY. 
 
 ■Woman with- 
 out separate 
 estate. 
 
 General license 
 by husband of 
 no use. 
 
 Meaning of 
 
 husband's 
 
 "assent." 
 
 Wherehusband 
 dies first, the 
 validity of 
 wife's Will 
 extinguished. 
 
 Ee-execution 
 alone will 
 restore it. 
 
 by Will. This is also expressly decided by Lord Westbury, 
 in the leading case of Taylor v. Meads (r). 
 
 A married woman without separate estate may make a 
 Will by her husband's permission, and the husband often 
 covenants before and also after marriage, to accord her 
 such permission, but his full assent must be given to the 
 particular Will, as a previous general license is of no use. 
 
 It will readily be seen that such a document could not 
 actually be a Will in the exact sense of that term, but 
 rather an appointment, the execution of which the hus- 
 band, by his bond, agreement, or covenant, might be under 
 obligation to allow (s). 
 
 "The assent on the part of the husband is no more 
 than a waiver of his rights as his wife's administrator, 
 and he therefore can only give validity to the instrument 
 in the event of his being the survivor. Hence it follows, 
 that if he die before his wife, her Will is void against her 
 next of kin, so far as it derived its effect from his consent, 
 and it therefore does not pass the right to property 
 bequeathed to her during coverture" (t) ; and this view 
 of the law, as stated by Sir E. V. Williams, has been 
 quoted with approbation by a late eminent judge (u). 
 
 If a married woman make a Will with her husband's 
 assent, and the husband die first, whatever support, 
 authority, or efiicacy the Will might derive from his con- 
 cuiTence is at once extinguished {x) ; nor will republication 
 of the Will after his death revive it, as the object of section 
 34 of the Wills Act is to get rid of republication as a 
 method of conferring testamentary validity upon all Wills, 
 whether made either before or after the Act {x). 
 
 " Nothing short of the re-execution of a Will itself, or 
 
 (r) 4 De G. J. & S. 597 ; 34 L. J. 
 Ch. 243, followed in Pride v. Bubb, 
 supra, 11. ( p) ; and see 1 L. C. Eq. 
 490. 
 
 (s) 2 Black. Comm. 498. 
 
 (t) 1 "Wms. Exors. 53. See also 
 the Judgt. of Lord Selborne, C, 
 
 in Nolle v. WUhcTc, L. E. 8 Ch. 
 778 ; 42 L. J. Ch. 683. 
 
 (u) Cresswell, J. 0., In the goods 
 of Smith, 27 L. J. P. & M. 39. 
 
 (a) Per Lord Penzance in Noble 
 V. Willoclc, 40 L. J. P. & M. 60. 
 
CONCERNING THE TESTAMENTARY POWER. 379 
 
 the formal execution under the Act of some document 
 ■which directly or indirectly affirms it, can be held to confer 
 any new or testamentary validityupon it beyond that which 
 is derived from its original execution. Testamentary 
 validity is by the 9th section of the Wills Act capable of 
 being conferred by formal execution alone, in the manner 
 required thereby, and there is no subsequent section or 
 provision by which this enactment is qualified " (x). 
 
 In order, therefore, to successfully republish a Will, it EepuMication 
 must, as has before been stated, be re-executed with all ^^^^^.^e- 
 the formalities necessary for its original execution, which 
 seems, however, to be no new doctrine. Sir John Nicholl 
 having previously held a republished Will to be a new Will. 
 
 The Will of a married woman, when she can make one, Married 
 speaks and takes effect as to the property comprised in it, J™ks^from 
 just as if executed immediately before her death, pre- death, 
 cisely as do those of other persons, and, therefore, passes 
 everything of which, at the time of her death, she had the 
 legal power of disposing {y). But if her Will, made during 
 coverture, be invalid in its inqeption, nothing can make it 
 valid, if her husband die first, except a complete re- 
 publication of it, which, as we have just seen, means 
 re -execution (z). 
 
 " . . . No Will made by any married woman shall l Vict. c. 26, 
 be valid, except such a Will as might have been made ' ' 
 before the passing of this Act." (See ante, p. 369.) 
 
 " . . . Every Will shall be construed, with reference 
 to the real estate and personal estate comprised in it, to 
 speak and take effect as if it had been executed imme- 
 diately before the death of the testator, unless a contrary 
 intention shall appear by the Will." 
 
 The effect of these two sections of the Wills Act, 1838, The great case 
 on the Will of a married woman, have recently been Vffloci. ^ 
 considered by the House of Lords, in the important case 
 
 {x) See note (a), p. 378. 17 L. J. Ch. 398, Judgt. The term 
 
 {y) Thomas v. Jones, 1 D. J. & reputlioation, though just used, 
 
 S. 63 ; 32 L. J. Ch. 139. may really be considered as obsolete 
 
 (2) Price V. Parker, 16 Sim. 198 ; in our law. 
 
380 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Testamentary 
 capacity of a 
 married 
 woman before 
 the Wills Act, 
 1838. 
 
 of Nohh V. Willoch or Willoch v. Nohle (a), to which refer- 
 ence has been made. That case, put in a general form, is as 
 follows : — One Mrs. Dawes, during coverture, made with her 
 husband's assent and in his lifetime, a Will purporting to 
 dispose of all her personal property. It was not shown that 
 he knew the contents of the Will ; but, at the time of 
 making it, she had separate property of her own, together 
 with a fee simple estate, over which she had a testamen- 
 tary Power of appointment. She survived her husband, 
 and, by his death, became possessed of other property not 
 held to her separate use. Her Will was not re-exe- 
 cuted after her husband's death. Sir J. Bacon, V.-C, held 
 that all the personal property of which she was possessed 
 at her death, passed by the Will made during her hus- 
 band's lifetime, the Will taking effect as if executed im- 
 mediately before her death. This decision was reversed 
 by the Full Court of Appeal (&), and it was settled that, 
 under the Wills Act, a Will made during coverture by a 
 married woman, who survives her husband, speaks from 
 her death only as to such property as she could have 
 lawfully disposed of by Will during coverture. This is 
 obviously a correct judgment, for, what was the extent of 
 a married woman's testamentary power before the Wills 
 Act, 1838 1 Lord Justice Mellish, in his judgment in the 
 above case, answers this question as follows : — " The pro- 
 perty which she had power to will at the time of the 
 passing of the Act, was property settled to her separate 
 use, and property over which she had a right to make a 
 Will under a Power. Those properties she can still leave 
 by her Will, and as respects those properties, all the 
 sections of the Act will apply, but no other property could 
 she will. She could not will her general property, 
 whether it was her choses in action not reduced into 
 possession at that time, or whether it was property of 
 
 {a) L. E. 7 H. L. 580 ; 44 L. J. 
 Oh. 345. 
 
 (6) Lord Selborne, C. ; James and 
 
 Mellish, LL.JJ., June ,5,1873; L.R. 
 8 Oh. 788 ; 42 L. J. Ch. 681. 
 
CONCERNING THE TESTAMENTARY POWER. ?8l 
 
 which she might afterwards become possessed as a widow ; 
 and, in my opinion, it is quite clear that the section does 
 not give her power to will that." 
 
 As regards the husband's assent, their lordships deter- Husband's 
 mined that, "this is entirely at an end in case of his ^ft™iiiii^^ 
 death leaving his wife surviving him. The whole doctrine 
 of the husband's assent rests on a foundation which dis- 
 appears when the event has happened." (Per Lord 
 Selborne, C). 
 
 The main points then decided in Noble y. Willock by The points in 
 the Court of Appeal in Chancery, were these : — First, that ^ig^J' 
 the Will of a woman made during coverture and with her 
 husband's permission, is ineffectual to pass property, which, 
 as a married woman, she could not by law devise or be- 
 queath ; second, that the ordinary Will of a woman under 
 coverture being void ah vnitio, only a conclusive assent 
 of her husband can validate it ; and, third, that a 
 married woman's Will can operate only either over her 
 separate estate, or in execution of a Power of appointment, 
 or for the purpose of appointing an executor to a Will of 
 which she herself was executrix, with the object of con- 
 tinuing the representation to the original testator (c). 
 
 From the Court of Appeal in Chancery, this case went 
 up to the House of Lords, where the judgment of the 
 former tribunal was entirely upheld by the Lord Chan- 
 cellor (Lord Cairns) and Lords Chelmsford and Hatherley. 
 
 Their lordships held, as did Lord Westbury, in Thomas 
 V. Jones (d), that the Wills Act— 1 Vict. c. 26, ss. 8, 24, 
 27 — does not enlarge or diminish or in any way alter 
 the testamentary capacity of a married woman, and 
 also that a married woman's Will made during her 
 husband's lifetime and with his assent, must, if she 
 survive him, be re-executed to make it a valid instru- 
 ment. It is to be observed that the assent by a hus- 
 band to his wife's Will, except where it is made in 
 
 (c) See also 1 Eop. Hus. and (d) 2 Jo. & H. 475 ; 1 De G. J. 
 
 Wife, c. 5, s. 2, 169, 170. & S. 63 ; 32 L. J. Ch. 139. 
 
382 WILLS OF PERSONAL PROPERTY, 
 
 execution of a Power, or in disposition of her separate 
 estate, or to appoint an executor for the purpose above 
 mentioned, amounts really to this, that he thereby waives 
 his right to administer her estate in the event of her pre- 
 deceasing him, and it is obvious that if he should die first, 
 leaving a Will, she would take whatever she acquired 
 under that Will, simply by the fact of his death. Her 
 own Will then, made in his lifetime, disposing of this 
 same property, so far as it related to the property which 
 she obtained by his Will, would consequently become in- 
 operative, and in order that it might pass this subsequently 
 received property, must, as we have seen, be re-executed. 
 Husband Moreover, a husband's assent to an instrument made by 
 
 should know ,. .„.,.,._. ,. , ,. . , 
 
 contents of his wiie m his litetime, bemg personal to him, is useless 
 ■ffifes Will. unless he knows its contents, for — to use the words of 
 Lord Cairns — '' an assent to making a WUl, or knowledge 
 that a Will had been made, would be quite consistent 
 with a belief by the husband that the Will was a disposi- 
 tion of separate property, or the execution of a Power, 
 neither of which acts he would have objected to." 
 Marriedwoman A married woman may make a Will in exercise of a 
 Power'^^'^"^^ * trust or a Power of appointment, the latter term, as 
 has been pointed out, signifying a right of exercising 
 ownership, without possessing the ownership itself. 
 
 Under the Wills Act 1838, a general devise by Will, 
 executed after the 1st of January of that year, operates as 
 an execution of a Power of appointment vested in the tes- 
 tator after the execution of the Will. This was the 
 opinion of Lord Westbury, and his lordship further 
 thought that section 8 of the Act does not prevent a general 
 devise by a married woman of property over which she 
 had power during coverture, from operating as such an 
 appointment (e). 
 Disposing If a married testatrix at the time of making her Will 
 
 before deatlh^ has no actual disposing power over, or in relation to, the 
 property disposed of, yet if she acquire that power during 
 
 («) Thomas v. Jones, supra, n. (c). 
 
CONCERNING THE TESIAMENTARY POWER. 383 
 
 her lifetime, her Will, as we have seen, takes effect as if , 
 made immediately before death, by force of section 24 of 
 the Wills Act; but of course only to the extent of the 
 separate estate of which she had command during 
 marriage. 
 
 " A distinction exists between the testamentary power Distinction te- 
 of a feme covert and the effect and operation of her testa- *"?™ Po-wer of 
 
 •> '^ 3, feme covert 
 
 mentary appointment. No greater testamentary power and its opera 
 is to be obtained from the Wills Act 1838, than would 
 otherwise have existed. But an effect and operation may 
 be given under the statute to a testamentary instrument 
 executed by a married woman which may make that in- 
 strument a valid exercise of an. existing testamentary 
 Power, which before the statute it would not have been 
 held to be " (e). (Per Lord Westbury.) 
 
 It is not within the scope of the authority of the Function of 
 Probate Division of the High Court of Justice to deny I'l®.^.™^*** , 
 
 -_-.„ „ . , Division of the 
 
 probate to the Will of a married woman merely because, Higli^ Court of 
 upon the face of it, it is not executed according to the ^^ng°of*^ar- 
 requisites of a Power ; nor can that Court inquire as to ried women 
 the due execution of a Power, that being only within ^^^ ^f powers', 
 the jurisdiction of the Chancery Division of the High 
 Court of Justice (/). 
 
 Again, a married woman may make a Will of personal Marriage 
 estate by virtue of the terms of her marriage settlement, ^^** ^™^'' ' 
 a proposition which, for the purposes of this work, will be 
 sufficiently illustrated by referring the reader to the cases 
 . mentioned below (g), the two last being also cited as also 
 useful on questions concerning revocation aad republica- 
 tion of Wills of married women who survive their husbands. 
 
 With regard to the provisions of the " Married Women's « Married 
 
 Property Act, 1870," it is enacted in the 1st section that ^^^ Act^"' 
 
 the earnings of married women from any employment, 1870." 
 
 (e) ThonuM v. Jones, supra, n. (c). (g) Peacock y. Monk, p. 370, 
 
 (/) Barnes v. Vincent, 5 Moo. n. (m); HawkesUyy. Barrow, L. R. 
 
 P. C. C. 201 (1846) ; TolUt v. 1 P. & D. 147 ; 35 L. J. P. & M. 
 
 Toilet, 1 L. C. Eq. 227 ; Harding v. 67 ; In the goods of Thorild, 36 L. 
 
 Olyn, 2 L. C. Eq. 946 ; Paglar v. J. P. & M. 119. 
 
 Tongue, L. R. 1 P. & D. 168. 
 
38 i WILLS OF PERSONAL PROPEKTY. 
 
 occupation, or trade, shall be deemed property settled to 
 their separate use, and in the 2nd sect, that such money 
 deposited by them in a savings bank shall be regarded in 
 the same way. By section 3, a married woman may re- 
 quire the Governors and Company of the Bank of England 
 and Ireland, so to transfer any sum in the funds to which 
 she may be entitled, that it may henceforth stand in her 
 name, and be converted into her separate estate, in which 
 light the law will view it. Sections 4 and 5 contain similar 
 enactments with regard to a married woman's property in 
 Joint Stock Companies and Friendly and other societies, 
 while by section 11 a married woman may maintain an 
 action in her own name for the recovery of monies declared 
 by the Act to be her separate property. The nature of this 
 statute is thus summarised by a learned writer akeady 
 referred to : — 
 Effect of the "The effect of the Act is to place women, whether 
 
 Act • . 
 
 married before or after the passing of the Act (August, 
 1870) in the position of /emes sole, in respect of the bene- 
 ficial enjoyment of property acquired by them after the 
 Earnings of Act hy their industry and skill. As regards this class 
 
 married women ,. j. xi i i i i j. j. -tx. 
 
 by industry °i property, they have now a personal legal status, with 
 and skill may power to enter into contracts, give receipts, and pursue 
 by deed or their remedies, civil and criminal, in relation to such 
 ^^' separate property in their own name, free from the disa- 
 
 bilities hitherto consequent upon coverture. They may 
 deal with such separate property during their lifetime, and 
 dispose of it by WUl, free from the control of their 
 husbands " Qi). 
 
 Lastly, under the statute 20 & 21 Vict. c. 85, ss. 21 & 25, 
 a married woman who has obtained " an order protecting 
 her earnings and property " by virtue of this Act, may, 
 during the continuance of the order and her husband's 
 desertion, enter into any contracts or make a Will just as 
 if she were single. The same rule applies also to women 
 judicially separated from their husbands. 
 
 (h) GrifiBths on the "Married 10. But see the Amendment Act, 
 Women's Property Act, 1870," p. 37 & 38 Vict, c. SO. 
 
CONCERNING THE TESTAMENTARY POWER. 385 
 
 Lunatics and non-compotes cannot make a valid Will Lunatics and 
 "during the time of their furor or insanity of mind °<«'-'=o«'P''*es. 
 • . . . for in making of testaments the integiity or 
 perfectness of mind, and not health of the body, is requi- 
 site ; and thereupon arose that common clause used 
 [formerly] in almost every testament, sick vn body, hut of 
 perfect mind and memory. And so strong is this impe- 
 diment of insanity of mind, that if the testator make his 
 testament after this furor have overtaken him, and while 
 as yet it doth possess his mind, albeit the furor after- 
 wards departing or ceasing, the testator recover his former 
 understanding, yet doth not the testament, made during his 
 former fit recover any force or strength thereby. Howbeit, Lucid inter- 
 if these mad or lunatic persons have clear or calm inter- ^^ " 
 missions, then during the time of such their quietness and 
 freedom of mind, they may make their testament, ap- 
 pointing executors, and disposing of their goods [and 
 lands] at their pleasures. So that neither the furor going 
 before, nor following the making of the testament, doth 
 hinder the same testament begun and finished in the 
 meantime " (i). 
 
 " And it is sufficient for the party which pleadeth the once mad 
 insanity of the testator's mind, to prove that the testator ^^•^i^™^'^' 
 was beside himself before the making of the testament, contrary be 
 although he do not prove the testator's madness at the ^^"""^ ' 
 very time of making the testament ; the reason is, it being 
 proved that the testator was once mad, the law presumeth 
 him to continue still in that case, unless the contrary be 
 proved " (k). 
 
 The law presumes a man to be sane until he is proved Presumption of 
 to be — or, according to Swinburne, to have been — : g^ni^*" 
 otherwise ; but when once he is proved insane, he is pre- 
 sumed by the law to continue stiU void of the use of 
 reason and understanding (I) ; " indeed, if lunacy be once 
 established, it is a matter of nice investigation to say, 
 
 (i) Swiab. pt. 2, sect. 3. (I) Ibid, 
 
 (i) Ibid. 
 
386 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Cases must be 
 detenmiied by 
 their own cir- 
 cumstances. 
 
 Effect of 
 proving a 
 diseased mind 
 to have existed. 
 
 Nature of the 
 question of 
 insanity. 
 
 Office of the 
 Probate 
 Di-risiou of the 
 High Court of 
 Justice in cases 
 of insanity. 
 
 Where the 
 sanity of a 
 
 what shall be evidence of such a remission or intermission 
 of his disorder, as shall allow the lunatic to dispose of his 
 property by Will " (m). 
 
 Of course, every case of this kind must be determined 
 according to the circumstances which constitute it ; but the 
 above extracts contain the general principles of the law on 
 the subject, and which were recognised and applied in a case 
 of great importance in the Court of Probate by Sir J. P. 
 WUde (Lord Penzance) (n). It was there held that, if 
 disease be once shown to exist in the mind of a testator, 
 it matters not that it is discoverable only when the mind 
 is addressed to a certain subject to the exclusion of all 
 others, or that the subject on which it is manifested has 
 no communication whatever with the testamentary dis- 
 position before the Court : the testator must be pronounced 
 incapable. A diseased state of mind once proved to have 
 established itself will be presumed to continue, and the 
 burden of showing that health has been restored falls upon 
 those who assert it (o). The question of insanity, said 
 Sir J. P. Wilde, is a mixed one, partly within the range 
 of common observation, and partly within the range of 
 special medical experience, and it is the office of the Court 
 of Probate, in searching for a conclusion, to inform itself 
 of the general results of medical testimony and observa- 
 tion, to discover, if possible, a fit conclusion, by alter- 
 nately presenting the parallel between sanity and insanity 
 to the sayings and doings of the deceased. The learned 
 judge, after noticing certain daily habits of the lady, the 
 validity of whose Will was in dispute, and which habits 
 were in themselves such as might have been those of a 
 person absolutely sane, proceeds thus : — " But if this be so. 
 
 (to) i Burn. Ecc. L. (by PhiUi- 
 more) 57. 
 
 (n) Smith v. TebUt, L. K. 1 P. & 
 D. 398 ; 36 L. J. P. & M. 97. A 
 testatrix was here under the in- 
 fluence of hallucinations connected 
 with matters of religion, and her 
 
 WiU was pronounced against. 
 
 (o) See also the concluding por- 
 tion of Sir J. Hannen's summing 
 up to the jury in Baughlon v. 
 KnigU, L. R. 3 P. & D. 64 ; 42 
 L. J. P. & M. 24. 
 
CONCERNING THE TESTAMENTARY POWER. 387 
 
 is it right, in forming a judgment of her sanity, to compare- person is in 
 her with people of that character and temper, and in sSd he oom- 
 scrutinising her opinions or ideas, to make the allowances p*™'^ -witii Ms 
 
 T . , , , , 0^^ mental 
 
 which experience warns us that we must make, when we standard, not 
 attempt to bring their conceptions to the ordinary stan- ^^grg 
 
 dard of mankind ? I conceive not When 
 
 the sanity of an individual is in question, instead of com- 
 paring him with a fancied standard of mental soundness, 
 as is too common the custom, his natural character should 
 be diligently investigated, in order to determine whether 
 the apparent indication of madness is not merely the 
 result of the ordinary and healthy constitution of the 
 faculties. In a word, he is to be compared with himself 
 not with others " {p ). 
 
 The question in all cases similar to this is not whether Sound and dis- 
 a testator was mad, but whether at the time of making i'°^"'S ™™ • 
 his Will he was of sound and disposing Tnind, onemory, 
 a/ad understanding; and these words mean that the mind 
 of the person disposing of his property is not unduly im- 
 paired by old age, enfeebled by illness, or tainted by morbid 
 influence (q). Accordingly, the principle of decisions on 
 these subjects in connection with the law testamentary is 
 not the same as that which governs decision in criminal 
 cases, where the question is one of madness or sanity. 
 
 But the mere fact that a testator is subject to insane Modification of 
 delusions is no sufficient reason why he should be held to 'io"*'^?^ of in- 
 have lost his right to make a Will, if the jury are satisfied 
 that the delusions have-not affected the general faculties 
 of his mind, and cannot have influenced him in any par- 
 ticular disposition of his property (r). 
 
 In these cases, therefore, it must be shown that the Delusions 
 delusions have influenced the dispositions in the Will and m^^t be shown 
 
 . . J 1 • 1 ■ 'to nave m- 
 
 the judge may leave it to the jury to decide whether a fluencedthe 
 
 terms of Will. 
 (p) Dr. Eay on The Medical Ju- (r) Banks v. Qoodfellow, L. E. 5 
 risprvdence of Imanily, quoted ty Q. B. 549 ; 39 L. J. Q. B. 237 
 Sir J. P. Wilde. (considered in Boughton v. Knight, 
 
 (q) Smith v. TelMt, supra, and supra, n. (o) ). 
 post, p. 391. 
 
 c 2 
 
388 
 
 WILLS OF PEESONAL PROPEKTY. 
 
 Valid Will un. 
 affected by 
 
 i in- 
 
 sanity. 
 
 ^testator, at the time of making his Will, was capable of 
 having a proper knowledge and appreciation of facts, and 
 was so far master of his intentions and free from delusions, 
 as to be able, first to properly exercise his volition, and 
 then act upon his determination in the disposition of his 
 property (s). 
 
 A valid Will is not affected by the subsequent insanity 
 of a testator ; but if a man die insane, leaving a Will 
 marked with insanity on the face of it, or if the Will is 
 the direct result of mental disease, the Court will grant 
 administration as in a case of intestacy, and wUl also direct 
 the Will to be filed (t). 
 Lucid interval. To Constitute what is called a lucicl interval, absence of 
 the disease itself, not of the particular delusion only, 
 must be shown, and the party must freely, and voluntarily, 
 and without any design at the time of pretending sanity 
 and freedom from delusion, be able to confess his delusion. 
 Moreover, the very fact of a man making a Will, which is 
 not absurd or improper in itself, is very good evidence of 
 the enjoyment of a lucid interval (u). 
 
 Where delusions are proved to have existed, both before 
 and after the execution of the WiU, the presumption is 
 that they existed at the time of the execution, and in such 
 case, proof of a lucid interval, at the time of the execution 
 is thrown upon the party propounding the WiU, and it is 
 immaterial that the delusions do not appear upon the face 
 of the Will. 
 
 The judgment in the case of Wari/ng v. Waring (x), 
 contains an exposition of the doctrine of monomania and 
 partial insanity as applied to Wills. There, a Will was 
 
 Partial in- 
 sanity and 
 monomania. 
 
 (s) Banks V. Goodfellow; and see Will, however, must te in full ao- 
 
 Boughton v. Knight, supra, n. (o). 
 
 {t) Dew V. Olarlc, 3 Add. Ecc. E. 
 207 ; In tJie goods of Bourget, 1 
 Cm't. 591. 
 
 (m) See Oartwright v. Cartwright, 
 1 Phillim. 90. See also Dimes v. 
 10 Moo. P. C. 422. The 
 
 cordance with the assumption of a 
 lucid interval, otherwise it will be 
 set aside. On this, read Lord 
 Brougham's Judgt. in Waring v. 
 Waring, 6 Moo. P. C. 341. 
 (a) 6 Moo. P. C. 341. 
 
CONCERNING THE TESTAMENTARY POWER, 389 
 
 ■written in 1834, by a widow without children, who left 
 real and personal property to a considerable amount. She 
 was a person originally eccentric, and in after life developed 
 unmistakable signs of insanity. Her Will, which did not 
 on the face of it betray marks of having been composed 
 by an insane person, conferred great benefits on a stranger, 
 but the Court pronounced against it. In the judgment of 
 the Court it is said that, if the mind is unsound on one 
 subject, provided that unsoundness is at all times existing 
 upon that subject, it is erroneous to suppose such a mind 
 is really sound on other subjects ; it is only sound in ap- 
 pearance, for if the subject of the delusion be presented 
 to it, the imsoundness would be manifested by such a 
 person believing in the suggestions of fancy, as if they 
 were realities ; any act, therefore, done by such a person, 
 however apparently rational that act may appear to be, is 
 void, as it is the act of a morbid or unsound mind. 
 
 Where there is a delusion of the mind there is insanity, Delusion. 
 and by a delusion is meant the belief of things as realities 
 which exist only, or at least in a degree exist, in the 
 imagination of the patient, and of the non-existence of 
 which neither argument nor proof can permanently con- 
 vince him. The mental condition which indicates this 
 incapacity to struggle against such an erroneous belief 
 constitutes an unsound frame of mind. The celebrated 
 case of Dew v. Clark established this doctrine (y). 
 
 Partial insanity, renders a Will null and void, if it Partial in- 
 can be proved or plainly inferred that the Will is im- 
 mediately founded in, or upon, such partial insanity — in 
 a word, if it is the direct unqualified offspring of morbid 
 delusion. 
 
 If then, A. makes a Will, plainly inofficious (z) in respect Inofficious 
 
 (y) Sir Jolm NiohoU in Dew v. assigning good excuse, any of the 
 
 Clark, 3 Add- Eco. E. 79, 207 (1826). children of the testator. " But any 
 
 (z) "The Romans were wont to gift, however small, was enough, and 
 
 eet aside testaments as heing in- it is thought that this circumstance 
 
 qfficiosa, that is, deficient in natural may have given rise to the common 
 
 duty if they passed hy, without but erroneous notion in England, 
 
390 WILLS OF PERSONAL PROPERTY. 
 
 to B., and is proved, at the time of making it, to have been 
 under a morbid delusion as to the character and conduct 
 of B., the Probate Division of the High Court of Justice 
 will pronounce against such a Will, and hold A. to have 
 died intestate in law, notwithstanding that he might have 
 been apparently sane in other particulars, or even gene- 
 rally, at the time of making his Will (a). 
 
 The judgment of Sir John Nicholl in Dew v. Clark, 
 and which occupies one hundred and thirty octavo pages, 
 has always justly been deemed to contain a very able 
 examination of the question of partial insanity, and has 
 frequently been quoted with approval by subsequent 
 judges and other persons of authority (b). 
 Lord Hale on " It is Very difficult," says Lord Hale, " to define the 
 the subject. invisible line that divides perfect and partial insanity ; 
 but it must rest upon circumstances duly to be weighed 
 and considered, both by judge and jury, lest on the one 
 side there be a kind of inhumanity towards the defects of 
 human nature, or on the other side too great an indulgence 
 given to great crimes " (c). 
 
 " Lord Hale is here considering the application of the 
 doctrine oi partial insanity to criminal cases only; in other 
 words, his observations, occurring in a work on criminal 
 law, are limited to the species, or degree, of insanity, neces- 
 sary to protect their agents from criminal responsibility. 
 Greenwood's for actual crimes committed. But the case of Greenwood 
 is good in proof of the equal applicability of the doctrine to 
 cases of contract or civil cases . . . (But see the judgment 
 of Sir J. P. Wilde in Smith v. Tebbitt, post, n. (e).) In the 
 former case the deceased, being insane, and so admitted on 
 all hands, insanely conceived, among other, no doubt, equally 
 absurd imaginations, that his brother, and only next of kin, 
 
 that a man who wishes to disin- 2, ch. 1, § 1, 30, text, also n. (a) ; 
 
 herit his heir is hound to leave him Smith v. Tebbit, post, n. (e). 
 a shilling. See 2 Black. Comm. (c) Pleas of the Crown, pt. 1, c. 4, 
 
 503 ; also, ante, p. 71 of this book. p. 29 : and Wms. Exors. ut supra, 
 
 (a) Dew V. Clark, ante n. (y). p. 31, from which this quotation is 
 
 (b) See 1 Wms. Exors. ^pt. 1, bk. taken. See dlsoSevi v. Clark, p. 95. 
 
 ease. 
 
CONCERNING THE TESTAMENTARY POWER. 391 
 
 had administered poison to him. His recovery, admitted 
 in other respects, was denied in this last particular ; and 
 influenced by still subsisting insanity, in this last par- 
 ticular, the deceased made a Will disinheriting his brother, 
 the validity of which was at issue. And the question in 
 Greenwood's case accordingly was — whether that insane 
 aversion which the deceased was admitted to have once, 
 felt towards his brother, had or had not subsided — was, or 
 was not in operation at the time when he made his Will." 
 The case was tried in the King's Bench upon an issue 
 devisavit vel non (see post, p. 411), and the jury found 
 against the Will, but a contrary verdict was obtained in the 
 Court of Probate, and the suit ended in a compromise (d). 
 The doctrine of partial insanity may now be considered 
 settled, and we have seen that partial insanity in a testator 
 may work a defeasance of his Will, if it can be shown or 
 fairly inferred that the Will was founded upon such partial 
 insanity. 
 
 Persons, however, may be of weak understanding with- Weak under- 
 cut being actual lunatics or insane ; persons who, in the ^ *" ™®' 
 language of the law, may not possess a sound and dispos- 
 ing mind. By this phrase is meant " a mind of natural 
 capacity, not unduly impaired by old age, or enfeebled by 
 illness, or tainted by morbid influence." Although delu- 
 sive ideas and erroneous beliefs may argue mental aliena- 
 tion, " they do so not merely because they are delusive and 
 erroneous ; it is in some cases the degree of their diver- 
 gence from ordinary sense and reason, and in others the 
 mode in which they exhibit themselves, and the forces 
 which they successfully resist for their expulsion, that 
 induce the conclusion of disease " (e). 
 
 If a man is so drunk at the time of making his Will Bruaken 
 
 persons. 
 
 (d) There appears to be no regular Eldon's remarks in White r. Wil- 
 
 report of GreenwoooCs case, but it son, 13 Ves. 89. 
 
 was referred to by Erskine, in his («) Smith v. TebUt, L. E. 1 P. & 
 
 defence of James Hadfield ; see 1 D. 398 ; 36 L, J, P. & M. 97. 
 Add. Ecc. Rep. 283 n, and Lord 
 
392 
 
 WILLS OF PERSONAL PROPERTY. 
 
 How intoxica- 
 tion regarded 
 in respect to 
 testamentary 
 acts. 
 
 Persons who 
 ■when intoxi- 
 cated comport 
 themselves as 
 lunatics. 
 
 Execution of a 
 Will deferred. 
 
 as to be utterly deprived of the use of his reason and 
 understanding, the Will then made is void in law. 
 
 " Intoxication is considered by testamentary courts as a 
 temporary insanity, which ceases with the exciting cause, 
 and where no fixed and settled delusion is shown, and 
 consequently no decided actual insanity and extravagant 
 •acts are accounted for by the excitement of liquor, while 
 at times the mind was sound ; in order to avoid a WUl, it 
 must be proved that the deceased was so excited by liquor, 
 or so conducted himself during the particular act, as to be 
 at that moment legally disqualified from giving effect to 
 such an act ; for insanity may be latent, but there can be 
 no such thing as latent ebriety " (/). 
 
 If, then, a drunkard, when under the influence of liquor, 
 habitually comports himself like a madman, he will be 
 accounted such in regard to the performance of a testa- 
 mentary act during the period of the excitcTnent caused 
 by drinking, but not afterwards (g). But the species 
 of derangement caused merely by habitual drinking 
 is, however, widely different in a legal view from in- 
 sanity, for a drunkard may carry on his business himself, 
 he may pursue his calling properly, may keep his own 
 accounts, make his own returns to the assessed taxes, and 
 yet be a drunken man, may play drunken pranks, and all, 
 without being insane Qi). 
 
 It may here possibly occur to the reader to put a ques- 
 tion of this kind. Suppose a man in good bodily and mental 
 health were to make a Will, but should delay the execution 
 of it until his capacity becomes from any cause doubtful or 
 impaired, and then does execute it ; would this be a good 
 execution ? The answer is, that if the validity of the Will 
 were questioned, " there must be proof of instructions or 
 reading over : for a man in a languid torpid state may 
 
 (/) 4 Bum. Eoc. L. by Philli- 
 moie, 60. 
 
 (g) Ayrey v. Hill, 2 Add. Ecc. 
 Eep. 206, where the Will of an 
 
 habitual drunkard was established. 
 (]i) Sir John Nicholl, in Billing, 
 hurst T. Vickers, 1 PhiHim. 190. 
 
CONCERNING THE TESTAMENTARY POWER. 393 
 
 easily acquiesce in signing his name to a Will set before 
 him, more especially when he knows that there is some- 
 thing in the paper which he wishes to take effect : the 
 presumption also is strong against an act done by the 
 agency of the party benefited ; the act is not actually 
 defeated, as it was in the Civil Law, provided the intention 
 can be fairly deduced from other circumstances. Though 
 the Court will not presume fraud, it will require strong 
 proofs of intention " (i). 
 
 In all such cases as these, let it be remembered that no Knowing and 
 Will can be valid unless it can be shown that the testator lentrorwin"' 
 at the time of its execution knew and approved of its 
 contents {U). If, however, the testator were competent to 
 understand the contents of his Will, and they were read 
 over to him, the execution would be conclusive evidence 
 that he did approve the contents — that is, of course in the 
 absence' of other fraud (Z). 
 
 What has previously been said may be thus summed Summary. 
 up in the words of Blackstone": — " Madmen, or otherwise, 
 non compotes, idiots, or natural fools, persons grown child- 
 ish by reason of old age or distemper, such as have their 
 senses besotted with drunkenness — all these are incapable, 
 by reason of mental disability to make any Will so long as 
 such disability lasts. To this class also may be referred Deaf, dumb, 
 
 1. r i_cj-LjiTj 1 and blind from 
 
 such persons as are born deal, dumb, and bund ; who, as 1,;^^ 
 they have always wanted the common inlets of under- 
 standing, are incapable of having animum testandi, and 
 their testaments are therefore void " (m). 
 
 A person born deaf and dumb may, however, make a 
 Will, but the Court of Probate will require evidence on 
 affidavit of the signs by which the testator had signified 
 his wishes, and that he understood and approved of the 
 
 (i) Sir J. NichoU, in BilliTighurst Atkkison, L. R. 1 P. & D. 665. 
 
 T. Tickers, supra. (l) Guardhouse v. Blackburn, L. 
 
 (i) Hastilow v. Stohu, L. R. 1 R. 1 P. & D. 109 ; 35 L. J. P. & 
 
 P. & D. 6i ; 35 L. J. P. & M. 18 ; M. 116. 
 
 Cleare v. Clmre, L. R. 1 P. & D. (m) 2 Black, Comm. 497. 
 655 ; 38 L. J. P. & M. 81 ; Atterv. 
 
394 WILLS OF PEKSONAL PROPERTY. 
 
 provisions of the Will, and the evidence offered will be 
 closely scrutinized (n). 
 
 " It is essential in law, that such instructions should be 
 signified, but it is not essential that they should be by 
 words; thus, a person born deaf and dumb, or become 
 deaf and dumb after birth, may convey his meaning by 
 signs ; a fortiori, a person that was only dumb and not 
 deaf could do so ; a multo fortiori, a person who could 
 use some words appropriately, who could read and under- 
 stand what was read to him, would be much better able 
 to signify his meaning by signs, than a person bom deaf 
 and dumb or become so " (o). 
 
 Where the testator was deaf, dumb, and illiterate, the 
 Court refused probate to his Will, without the consent of 
 the person entitled in case of intestacy, the evidence as to 
 the signs and motives having been unsatisfactory (p). 
 Blind. A blind person may make a valid Will, but it inust be 
 
 shown that he knew and approved the whole contents of 
 the Will, which should be read over to him in the presence 
 of witnesses, and acknowledged by him as his last Will 
 and testament (q). 
 
 It was once decided that this reading over the Will 
 was not essential (r) ; but common sense dictates the 
 expediency and propriety of such a course ; and what has 
 been said concerning blind testators is equally applicable 
 to those who from ignorance, or other causes, besides that 
 of blindness, are unable to read for themselves (q). 
 Convicted Until lately, the Wills of all traitors, felons, and suicides, 
 
 and suicides. ' were i'lficapable of taking effect, from the fact of their 
 goods and chattels having been liable to be forfeited to 
 
 («) In the goods of Owston, 2 Sw. n. (»). 
 & Tr. 461 ; 31 L. J. P. & M. 177. (j) Swinlj. pt. 2, sect. 11 ; Bar- 
 In the goods of Geale, 3 Sw. & Tr. ton v. Mobins, 8 Pljill. 455 n. Rule 
 431 ; 33 L. J. P. & M. 125. 71 of the Principal Registry of the 
 
 (o) Fairtloughy. Fairtlough, Note Prohate Division of the High Court 
 
 tothe Jndgt. oftheRightHon. Dr. of Justice in Non-contentious 
 
 RatclifEe, Milward's Ecc. Rep. 38 Business. 
 
 (Ir.). {r) Longchamp v, Fish, 2 N, R, 
 
 (p) In the goods of Owston, supra, 415. 
 
COJSrCEKNING THE TESTAMENTARY POWER. 895 
 
 the Crown, a rule not always acted on : but by a recent 
 Act of Parliament (s), attainder and corruption of blood, 
 forfeiture and escheat are abolished, so far as they concern 
 persons who commit treason, felony, or suicide. The 
 Act in question, however, provides in specific terms that no 
 convict shall alienate or charge his property — a provision 
 which would seem to extend to the making of a Will — 
 during the time of his being subject to the operation of 
 the Act ; and the wife of a convicted felon is, as regards Meaning of 
 the right to make her testament in the position of a. feme '''°°^<='- 
 sole (t). The term " convict " is defined by the Act to 
 mean any person against whom, after the passing of the 
 Act, judgment of penal servitude shall have been pro^ 
 nounced in any competent Court in England, Wales, or 
 Ireland, upon any charge of treason or felony (sect. 6). 
 
 The Act provides also for the payment by the felon of 
 the costs of the prosecution, and also for the proper custody, 
 management, &c., of his property during his term of 
 punishment. 
 
 This Statute leaves untouched the law of forfeiture Outlawry, 
 resulting upon outla/wry ; consequently, as no outlaw, 
 though only for debt, could make a Will of personalty 
 until the outlawry was reversed, because his goods and 
 chattels became forfeited to the Crown (u), so now, an out- 
 law, so far as this Act concerns him, is just in the same 
 position as he was before. Previous to the Felony Act 1870, 
 an outlaw and a, felo-de-se were, in regard to the efficacy of Felo-de-se. 
 their Wills, on the same footing ; each was liable to forfeit 
 his personal, but not his real estate (x). Now, as we have 
 seen, while an outlaw stiU forfeits his goods and chattels, 
 those of a suicide are exempt by the terms of the statute. 
 
 (s) 33 & 34 Vict. u. 23, s. 1. As 2 Sw. & Ir. 156 ; 31 L. J. P. & M. 
 
 to attainder and corruption of blood, 178. 
 
 see 4 Black. Com. 380, and 2 Black. (t) In the goods of Coward, 4 Sw. 
 
 Com. 251, 256. Sir C. Cresswell & Tr. 46 ; 34 L. J. P. & M. 120. 
 
 held in 1862, In the goods of Bailey, (u) 2 Black. Com. 499. 
 
 that the executor of a/eZo de se was (x) 2 Shep. Touch, by Prest. 404, 
 
 entitled to probate of the Will left ; 405. 
 
396 
 
 WILLS or PERSONAL PROPERTY. 
 
 Persons under 
 the influence 
 of fear, fraud, 
 or undue in- 
 fluence. 
 
 Fraud and un- 
 due influence. 
 
 It is to be borne in mind that the WUls Act 1838, pro- 
 vides, in specific terms, for only tv/^o cases of disability on 
 the part of testators, namely, infancy and marriage ; con- 
 sequently, as to the others with which we are dealing, 
 they are governed principally by the Common Law, which 
 of course, in this respect, remains unaltered (Sweet on the 
 WUls Act, 30). 
 
 " Nothing)" says Swinburne, " is more contrary to free 
 consent than /ear ; worthily, therefore, is that testament 
 to be repelled which is made upon just fear." The ques- 
 tion then is, what constitutes "just fear?" and this, 
 Swinburne himself tells us, is " such a fear as may move a 
 constant man or woman .... as the fear of death, or of 
 bodily hurt or imprisonment, or the loss of all or most part 
 of goods and such like fear, whereof no certain rule can 
 be delivered, but is left to the discretion of the Judge, who 
 ought not only to consider the quality of the threa;tenings, 
 but also the persons as well threatened, as threatening ; 
 and in the threatened, the sex, the age, the courage or 
 pusillanimity ; and in the person threatening the power, 
 the disposition, and whether he be a mere boaster or per- 
 former of threats " (?/). And, according to the judgment 
 in a recent case, a pressure of whatever character, whether 
 it acts on the fears or the hopes of an individual, if so 
 exerted as to overpower the volition, without convincing 
 the judgment, is a species of restraint under which no 
 valid Will can be made (z). 
 
 It is presumed, however, that if a man make a Will 
 under the influence of fear, but afterwards, when there is 
 no further cause for fear, ratify it, such Will, in the absence 
 of other objection, would hold good in law. 
 
 " The modes of fraud are infinite ; and it has been said, 
 that Courts of Equity have, very wisely, never laid down, 
 as a general proposition, what shall constitute fraud, or 
 any general rule, beyond which they will not go, upon the 
 
 (y) Swinb. pt, 7, sect, 2. 
 
 {%) Hall V. Mall, L. E. 1 P. 
 
 D. 481 ; 37 L. J. P. & M. 40. 
 
CONCERNING THE TESTAMENTARY POWER. 397 
 
 ground of fraud, lest other means of avoiding the equity 
 of the Courts may be found .... It is usually and ac- ■ 
 curately divided, however, into two large classes .... 
 Actual Fraud and Constructive Fraud " (a). 
 
 But although the difficulty of giving a precise definition 
 is very great, if not utterly impossible, we yet may lay 
 down with some precision in a general proposition what 
 does constitute fraud. Mr. Justice Story himself has done Story's desorip- 
 
 1 -r-1 1 • 1 f f ■ *""^ "' fraud. 
 
 SO, and says that " Fraud, m the sense ot a court of equity, 
 properly includes all acts, omissions, and concealments, 
 which involve a breach of legal or equitable duty, trust, or 
 confidence justly reposed, and are injurious to another, 
 or by which an undue and unconscientious advantage is 
 taken of another " (6). Pothier describes fraud as " toute Pothier. 
 espece d'artifice, dont quelqu'un se sert pour en tromper 
 un autre " (c). 
 
 "By fraud is meant all surprise, trick, cunning, dis- Domat. 
 sembling, and other unfair way that is used to cheat any 
 one " {d). 
 
 " Itaque ipse, (referring to Antistius Labeo, the cele- Antistius 
 brated lawyer in the reign of Augustus Cassar, and men- 
 tioned by Suetonius in his life of that Emperor : ch. 74), 
 sic definiit dolum malum esse omnem calliditatem, falla- 
 ciam, machinationem ad circumveniendum, fallendum, 
 decipiendum alterum adhibitam " (e). 
 
 The word dolus, we may observe, as used in Roman law. Dolus. 
 was one of singular ambiguity, and it appears to have been 
 used both in a good and a bad sense, not only by lawyers 
 but by other persons ; consequently we find mention made 
 of dolus bonus and dolus inalus. The signification of 
 fraus was, however, much wider than dolus, which pro- Fraus. 
 
 {a) Smith, Man. Eq. (c[Uotiiig St. {d) Domat, 1, 18, 3. 
 
 Eq. Jur. § 186) 55. (e) Dig. 4, 3, 1, 2, and 2, 14, 7, 
 
 (5) St. Eq. Jnr. § 187. 9. Therefore he himself thus de- 
 
 (c) Traits des ObUg. pt. 1, o. 1, JiTies gross fraud; that it is any 
 
 n. 28. Every species of artifice ciwning, deception, or artifice, used 
 
 made v,se of by one person to deceive to circwmmnt, cheat, or deceive 
 
 another. - another. See also Calvin. 
 
398 WILLS OF PERSONAL PROPERTY. 
 
 bably indicated mere deception, without moral turpitude, 
 more than anything else. " Dolum bonum veteres etiam 
 dicebant, et pro sollertia accipiebant, maxime si adversus 
 hostem latronemve quis machinetur " (/). But "dolus malus 
 est ratio vafra, decipiens alium, alio nomine vacans " {g). 
 
 Swinburne seems to have had this distinction in view 
 when he penned the following sentence, which quaintly 
 illustrates the difference between dolus bonus and dolus 
 malus: — " Nevertheless, when the deceit is not evil, but 
 good (for all deceit is not evil), such deceit doth not hinder 
 the testament: for example, the testator intending to 
 bestow all his goods upon some vile and naughty person, 
 omitting his honest wife and dutiful children : if the wife 
 or children beguile the testator, persuading him that that 
 lewd person is dead, or by some other means deceive the 
 testator, and so procure themselves to be made executors 
 or universal legataries ; this deceit is not reproved as 
 evil, and therefore the testament is not to be repelled as 
 unlawful" (A). 
 
 The case here put is a soinewhat peculiar one, not likely 
 perbaps to occur, but yet if it did, we cannot see how a 
 modern Court could well avoid treating the transaction 
 as fraudulent, as the Will would be executed through a 
 false representation. 
 Legalandmoral According to our law — which on this particular subject 
 is extremely difficult to generalize — if a person makes a 
 statement, which knowing it to be untrue, or which even 
 he does not believe to be true, and injury results, though 
 not intended, to any other person from such statement, 
 this is deemed such a breach of moral obligation as to 
 amount to a legal fraud, for which an action will lie. But 
 
 (/) Calv. Lex. Jurid. "Dolus.'' the sole object of which is to cheat 
 
 The omdeTds used to speak of good or another. The two adjectives, soUers 
 
 justifiable deceit, and regarded it as and vafer then, seem to accurately 
 
 adroitness, especially where any one mark the distinction between inaliis 
 
 employed it against an enemy or a and bonus dolus. 
 robber. (Ji) Swinh. pt. 7, s. 3. 
 
 {g) Bad deceit is a crafty purpose. 
 
 tmad. 
 
CONCERNING THE TESTAMENTARY POWER, 399 
 
 it is to be remembered that " legal fraud may exist without 
 any serious amount of moral turpitude, but there must 
 be sovne admixture thereof to constitute legal fraud" 
 (Broom's Oomm.) ; and if a person makes a representa- 
 tion which, though true, is believed by him to be otherwise, 
 with a deceptive motive and intention, and some third 
 person is thereby prejudiced, this will be deemed both a 
 legal and a moral fraud for which an action will lie. But 
 " an action for deceit will not lie without proof of moral 
 fraud" (j) — that is fraud perpetrated by falsehood, though 
 it may be without actually the motive to injure — and be- 
 fore such an action can be maintained damage must have 
 accrued in consequence of the fraud. Unless damage 
 result, no action will lie, even though a representation is 
 made expressly with a view to deceive. " Fraud without 
 damage, or damage without fraud, will not found an action; 
 but, where both concur, an action will lie " {h). 
 
 In Swinburne's imaginary case, we find the conjunction 
 of these two ingredients — ^falsehood, and consequent injury 
 resulting to a third person ; in short, a fraud is practised 
 upon the testator, one which perhaps stern moralists 
 might pronounce to be of a commendable character, but 
 yet one which in the eye of the law must certainly be 
 deemed a fraud. 
 
 Without dwelling longer, however, on this case, we will 
 proceed to consider some important decisions of recent 
 times, in which the principles of our law on the subject of 
 fraud in connection with Wills have been ably set forth. 
 The first of the decisions to which we will refer, was that of 
 the Judicial Committee of the Privy Council delivered by 
 Parke, B., in the appeal case of Barry v. Butlvn (I), in Bmry v. 
 1838. Here, a Will had been prepared by the testator's ^"*^*"- 
 solicitor, under which the latter took a considerable 
 
 (i) Taylor v. Ashton, 11 M. & L. 0. 71 ; Broom's Comm. 
 "W. 415 :— Judgt. of Parke, B. (T) Barry y. Butlin, 2 Moo. P. C. 
 
 (h) Bailey v. Merrell, 3 Bulat. 480 ; 1 Curt. 637 ; affirmed in 
 
 95 ; Pasley v. l¥eeman, 2. Sm. Browning v, Budd, 6 Moo. P. C. 430 
 
400 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Two mles of 
 law on this 
 subject to be 
 noted. 
 
 Party taking 
 a benefit under 
 Win prepared 
 by liim. 
 
 Person pre- 
 paring a Will 
 and securing a 
 legacy there- 
 from. 
 
 benefit, while the only son of the deceased was excluded. 
 The testator was of weak, though testable capacity, but his 
 Will was upheld, the Court of Appeal affirming with costs 
 the judgment of the Prerogative Court. " The rules of 
 law," said Baron Parke, in delivering the judgment of the 
 Court of Appeal, " according to which cases of this nature 
 are to be decided, do not admit of any dispute, so far as 
 they are necessary to the determination of the present 
 appeal : and they have been acquiesced in on both sides. 
 These rules are two, the first that the onus probandi lies 
 in every case upon the party propounding a Will ; and he 
 must satisfy the conscience of the Court that the instru- 
 ment so propounded, is the last Will of a free and capable 
 testator. 
 
 " The second rule is, that if a party writes or prepares a 
 Will under which he takes a benefit, that is a circumstance 
 which ought gene53,lly to excite the suspicion of the Court, 
 and calls upon it to be vigilant and jealous in examining 
 the evidence in support of the instrument, in favour of 
 which it ought not to pronounce, unless the suspicion is 
 removed, and it is j udicially satisfied that the paper pro- 
 pounded does express the true Will of the deceased. These 
 principles to the extent that I have stated are well 
 established." His lordship refers to the cases enumerated 
 below as authorities (m), and afterwards observes that : — 
 "All that can be truly said [in such cases as these] is that, 
 if a person, whether attorney or not, prepares a Will with 
 a legacy to himself, it is at most, a suspicious circumstance 
 of more or less weight, according to the facts of each par- 
 ticular case : in some of no weight at all . . . but in no 
 case amounting to more than a circumstance of suspicion, 
 demanding the vigilant care and circumspection of the 
 Court in investigating the case, and calling upon it not 
 to grant probate without full and entire satisfaction that 
 
 (m) Paske v. Ollatt, 2 Phill. 323 ; 
 affirmed by iiTOwmm^v. Budd, ante, 
 n. if) ; Ingram v. Wyatt, 1 Hagg. 388 ; 
 
 MUinghurst v. Vickers, 1 Phill. 
 187 ; Eaker v. Baft, 1 Curt. 125. 
 
CONCERNING THE TESTAMENTARY POWER. 401 
 
 the instrument did express the real intentions of the de- 
 ceased. 
 
 With regard to the legal expression onus probandi so Meaning of 
 often employed in these cases. Baron Parke said :— "The <»""i»"'!'««^- 
 strict meaning of that term is, that if no evidence is given 
 by the party on whom the burden is cast, the issue must 
 be found against him." 
 
 Another case in point is that of Jones v. God/rich (n), jmes v. God- 
 decided, on appeal, by the Judicial Committee of the '^'^^• 
 Privy Council, in 1844. The judgment of the Court 
 delivered by the late Dr. Lushington, contains a clear ex- 
 position of the principles by which the Court [of Probate], 
 must be guided in determining questions of fraud and 
 undue influence arising out of matters testamentary. 
 
 In Jones v. God/rich, according to the head note of the 
 report of the case, the testatrix, who was 86 years of age — 
 and, as alleged, of feebled and impaired mind — made a Will 
 with two codicils in favour of her medical attendant, a 
 stranger to her in blood, leaving him the bulk of her pro- 
 perty and appointing him sole executor and residuary 
 legatee. The Will was executed at his house, and pre- 
 pared by his attorney, and was at variance with previous 
 dispositions of property in favour of distant relatives ; - 
 but the Prerogative Court being satisfied of the capacity 
 of the testatrix, admitted her Will and both codicils to 
 probate. 
 
 This decision, so far as it regarded the Will and one Any person 
 codicil, was affirmed by the Judicial Committee of the Stee!* 
 Privy Council ; but the second codicil, on new facts being 
 disclosed, was pronounced against, and the- sentence of the 
 Prerogative Court to that extent, reversed. 
 
 The fact of a man being the solicitor, medical attendant, 
 &c., of the person of whose WiU he may be sole legatee, is 
 not in itself an injurious circumstance, for " the law of Eng- 
 land," said Dr. Lushington, " has prescribed no restrictions 
 upon testamentary dispositions as to who may be legatees, 
 (re) 5 Moo. P. C. 16. 
 
402 WILLS OF PERSONAL PKOPERTY. 
 
 Where that power is exercised in favour of guardians, 
 trustees, solicitors, medical attendants, or persons standing 
 in a similar relation to the deceased, the degree of proof 
 required will be greater or less according to circumstances ; 
 but if the Court be satisfied that there was adequate 
 capacity, testamentary intention untainted by fraud, and 
 Fraud cannot a due execution, the instrument is valid. Fraud cannot 
 be presumed, but the circumstances may render fraud so 
 probable, that the Court will require stronger proof, than 
 in cases where all natural presumptions are in favour of 
 What is re- the disposition and the free will of the testator." And 
 ?Se°a wm again—" To invalidate a Will on the ground of fraud and 
 on ground of undue VTifluence, it must be shown that they were 
 ' ■ practised with respect to the Will itself, or so contempo- 
 raneously with the Will, or connected with it as by almost 
 presumption to affect it. Other frauds committed against 
 a testator are only evidence to raise a strong suspicion 
 against any act done under the superintendence or by the 
 interference of those committing them" (o). 
 
 Jones V. Godrich also decided that a solicitor who pre- 
 pares a testamentary paper, at the instance of the party 
 benefited by it, is not privileged, on the ground of pro- 
 fessional confidence, to withhold from the Court facts 
 relating to contemporary acts upon which he founded his 
 •opinion of the testamentary capacity of the person making 
 the Will. 
 Will prepared The case to be next noticed is that of Scouler v. Plow- 
 benefited! ^ ^ ''"'^^^ ip) l ^^^ there the Will in dispute had been pre- 
 ScovUr T. pared by the party principally benefited, to the . exclusion 
 of the testator's family, and the Will had been concealed 
 during the testator's lifetime. Held, on appeal, that the 
 Will was invalid. 
 
 The evidence adduced in this case, showed no previous 
 declaration of an intention by the testator to make such a 
 Will as that found at his decease ; nor did it prove any 
 subsequent recognition by him of its contents. On the 
 
 (o) J<mes7. Qochich, swpTO, n. (n). (p) 10 Moo. P. C. 440. (1856.) 
 
CONCERNING THE TESTAMENTARY POWER. 403 
 
 contrary, the evidence established, from the whole conduct 
 of the testator, the fact that he executed the Will in 
 ignorance of its contents, while acting under the control 
 of the party principally benefited, and consequently that 
 a fraud had been perpetrated which the Court would not 
 suffer to prevail. 
 
 In ordinary cases, where there is execution and capacity. Execution and 
 the validity of a Will may be established without serious ^aUy ma/eT' 
 difficulty ; but where the Will is prepared by the party Will valid. 
 principally benefited, and the other circumstances are sus- 
 picious, an exception to the rule prevails, and it is necessary 
 to prove to the satisfaction of the Court that the testator 
 had full knowledge of the instrument and its contents, 
 and executed the same freely, without undue control. 
 
 These cases very clearly indicate the main principles of 
 the law on the part of the subject which we are consider- 
 ing : the two first exemplify an important rule, the third 
 exhibits a state of circumstances illustrating an important 
 exception thereto, and the law as embodied in them may 
 be thus summarised. A Will cannot be set aside, as Summary. 
 having been fraudulently obtained, merely because the 
 person principally, or even wholly benefited, was the 
 person who framed the Will. That would no doubt be a 
 circumstance calculated to raise suspicion, but as in no 
 case can fraud be presumed, so if the party who propounds 
 the Will can satisfy the Court that the testator had full 
 knowledge of the contents of the Will, that he was under 
 no control, under no apprehension or fear of any kind, then 
 the document must be upheld. But, at the same time, 
 the Court will, in such a case, exercise vigilaint care before 
 granting probate, and will do its utmost to make sure that 
 no fraud has been exercised towards the testator. Circum- 
 vention by fraud, deceit, or flattery, have the same effect ?*^?* "* tia.yii, 
 
 , ]. 1 . , ,. ,. . deceit, and 
 
 as constraint by force, and operate agamst the validity of flattery. 
 a Will just as the latter does ; and whenever a Will is 
 
 impeached as h&,ving been obtained by fraud, undue Where fraud is 
 
 influence, force, &c., three things, in support of the Will, oityf intentfon, 
 
 D D 2 
 
404 WILLS OP PERSONAL PROPERTY. 
 
 and execution must be proved to the satisfaction of the President of the 
 
 by testator _^ _ ^. . . 
 
 must be proved. Probate Division of the High Court of Justice: — the tes- 
 tator's capacity, his testamentary intention, and the execu- 
 tion of the Will by him. If these are proved, then the onus 
 prohandi will in general be held to be discharged. 
 Misrepresenta- " Undue influence " and " fraud " — ^which includes mis- 
 frand"" " ' ™ representation, were not considered to be — as matters of 
 pleading — on the same footing in the Court of Probate ; 
 Difference be- as the pleading rules of 1865 make " fraud " the subject 
 fraud and un- of ^ Separate plea, and " undue influence " raises the 
 due influence, question of coercion, and that only. 
 
 of "MuOTce^' '^^ infiuence which will invalidate a Will "must amount 
 to force and coercion, destroying free agency : it must not 
 be the influence of affection and attachment ; it must not 
 be the mere desire of gratifying the wishes of another, for 
 that would be a very strong ground in support of a testa- 
 mentary act ; further, there must be proof that the act 
 was obtained by this coercion, by importunity which could 
 not be resisted, or that it was done merely for the sake of 
 peace, so that the motive was tantamount to force and 
 fear (g) ; and undue influence, like fraud, cannot be 
 presumed (r). 
 Parfiu T. Law- Ii ^ recent and highly impoi-tant case before the full 
 '"»• Court of Probate, Lord Penzance delivered a powerful 
 
 judgment, which exhaustively deals with the question of 
 undue influence over testators (s). Here, a lady, a Eoman 
 Catholic, gave the bulk of her property to A., whom she 
 named her residuary legatee and devisee. This person 
 was a Roman Catholic priest, and had lived in her house 
 for twenty-five years. The property was left to him for 
 his own use and benefit absolutely, free from any trust 
 whatsoever, and he was also appointed sole executor of 
 the Will, which he duly propounded. Thereupon, the 
 nephew of the testatrix pleaded that the execution of the 
 
 (2) 1 "Wms. on Exors. Pt. 1, bk. 6 : Judgt. of Lord Cranworth. 
 2 ch. 1, § 2, 47. (s) Parfitt v. Lawless, L. E. 2 
 
 ' (}•) B(yyse^. Bossborough, 6 H. L. P. & D. 462 ; 41 L. J. P. & M. 68. 
 
CONOEENINO THE TESTAMENTARY POWER. 405 
 
 Will, in so far as it related to the residuary bequests and 
 devises therein contained, was obtained by the undue 
 influence of the plaintiff, the executor. Issue was joined 
 on this plea, and the cause was tried by Lord Penzance 
 and a special jury on the 28th December, 1871. The 
 plaintiff was called on behalf of the defendant, and was 
 allowed to be cross-examined by the defendant's counsel 
 as an adverse witness. In the result. Lord Penzance held 
 there was no evidence to go to the jury in support of the 
 plea of undue influence, and directed a verdict for the 
 plaintiff. The defendant then moved for and obtained 
 from the fuU Court a rule nisi for a new trial on the 
 ground of misdirection ; his contention being, first, that 
 there was some evidence of undue influence to go to the 
 jury, and secondly, that the relations which existed be- 
 tween the plaintiff and the testatrix, together with the Will 
 made by her in his favour, raised such an amount of 
 suspicion against the plaintiff as to alter the ordinary rule 
 and shift the burden of proof of undue influence from the 
 defendant. The rule was granted for another reason also, 
 namely, to consider a suggestion, strongly pressed, that the 
 rules adopted in Courts of Equity in relation to gifts inter 
 vivos ought to be applied to the making of Wills. On 
 the rule being argued before the full Court, it was sought 
 to show that in such a case as the present, where the 
 testator and legatee stood in the relation of penitent and 
 confessor, the Court, on gi-ounds of public policy, ought to 
 presume the existence of undue influence, also that the 
 doctrine of Equity as to gifts and deeds inter vivos, and 
 the reasoning on which it was founded, should be followed 
 by the Court of Probate in determining the case in ques- 
 tion ; and in support of the proposition Huguemm v. 
 Baseley (t) was cited. 
 
 The rule was discharged with costs, and from the judg- 
 
 (<) 2 L. C. Eq. 556, This waa aside as obtained by undue iniiu- 
 a case, decided by Lord Eldon, of ence and abused confidence. (1807.) 
 a voluntary settlement being set 
 
406 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Equity casts 
 the burden of 
 proof on the 
 influencing 
 party in gifts 
 mter vivos. 
 
 Different rule 
 
 . as to Wills. 
 
 Difference be- 
 tween a legacy 
 and a gift inter 
 ■vivos obtained 
 by fraud. 
 
 ment of the Court we glean the following points of learn- 
 ing on the question of undue influence. 
 
 In Equity, persons standing in certain relations to one 
 another, such as parent and child, man and wife, doctor 
 and patient, attorney and cliept, confessor and penitent, 
 guardian and ward, are subject to certain presumptions 
 where transactions between them are brought in question ; 
 and the burden of showing hona fides is cast upon the 
 person who is, or was, in the position to influence, that is, 
 if the gift or contract is impeached by him who was 
 subject to that influence. 
 
 In the case of a WUl, however, even if it can be shown 
 that the legatee falls within the class above enumerated, 
 yet the onus cannot be cast upon him of proving that his 
 legacy was not obtained by undue influence. Such is not, 
 nor ever has been the law in the Court of Probate, or 
 indeed of any other Court, regarding Wills, and had the 
 Court followed this doctrine urged upon it there would 
 then have been one rule for personalty and another for 
 realty. 
 
 The difference between the view taken of a gift inter 
 vivos and that taken of a legacy, where they have been 
 respectively obtained by undue influence, will be seen from 
 the following considerations : — 
 
 In a gift or contract i/wter vivos, the person beneflted 
 at least takes part, whether he unduly urges his influence 
 or not ; and the Court simply requires of him an explana- 
 tion within his knowledge ; but in the case of a legacy 
 the legatee may have, and, in point of fact, generally has 
 no part in, or even knowledge of, the act, and therefore a 
 duty would be cast upon him which would in most cases 
 be impossible to discharge. Again, in the case of gifts 
 i/nter vivos, the donor, while living, gives up his pro- 
 perty, a testator of course does not. A donor, or donee 
 of a gift inter vivos can explain how it was obtained ; a 
 legatee, as we have seen, cannot always do so ; and the 
 party benefited by a gift inter vivos must, if his hona 
 
CONCERNIITG THE TESTAMEKTARY POWEE. 407 
 
 fides in obtaining it be questioned, show affirmatively that 
 the other party was placed in such a position as would 
 enable him to form an absolutely free and unfettered 
 judgment (u). 
 
 The rule of law regarding Wills is somewhat different The law of 
 from this in regard to the mode of its application, but the ^o^m^t 
 principle is of course the same, namely, the counteraction from that 
 
 s of sifts vnisi* 
 
 of fraud. The natural influence of the persons standing n^os. 
 in those various relationships to which we have referred, 
 may be lawfully exerted to obtain a Will or legacy, so long 
 as the testator thoroughly understands what he is doing, 
 and is a free agent. But persuasion must stop short of 
 coercion, and the volition of the testator, though biassed 
 and impressed by the relation in which he stands to the 
 legatee, must not be overborne and subjected to the 
 domination of another. 
 
 In judging whether there is, in any case of this kind, Duty of the 
 evidence for a jury, the President of the Probate Division ^^fther there 
 of the High Court of Justice must weigh the evidence is evidence 
 given, must assign what he conceives to be the most 
 favourable meaning which can reasonably be attributed 
 to any ambiguous statements, and determine on the whole 
 what tendency the evidence has to estabhsh the issue. 
 
 A person upon whom lies the burden of proving an issue Limit of duty 
 is not bound to prove every fact or conclusion of fact upon ^iiom^nes''o««s 
 which that issue depends. From every fact that is proved, proiaruU. 
 legitimate and reasonable inferences may of course be 
 drawn, and all that is fairly deducible from the evidence 
 is as much proved, for the purpose of a primd facie case, 
 as if it had been proved directly. In discussing, therefore, 
 whether there is in any case evidence to go to the jury, 
 what the Court has to consider is whether, assuming 
 the evidence to be true, and adding to the direct proof all 
 such inferences of fact as in the exercise of a reasonable 
 
 {u) Euguenvn v. BaseUy, 2 L. 0. Sindsomr, Weaiherhill, post, p. 410, 
 Eq. 656 and notes ; also read the n. (c). 
 judgments of the Lords Justices in 
 
408 WILLS OF PEESONAL PROPERTY. 
 
 intelligence, the jury would be warranted in drawing from 
 it, there is suflficient evidence to support the issue. 
 What de- In all cases like that of Parfitt v. Lawless — from the 
 
 prove in those judgment in which the foregoing observations are taken — 
 '^*^' what the defendant should be able to prove are the fol- 
 
 lowing propositions : — 
 
 1st. That the plaintiff interfered in the making of the 
 
 Will. 
 2nd. That he had procured the legacy to be given to 
 himself. 
 Persuasion and 3rd. That he had done this not by persuasion or advice, 
 
 advice to a tes- i.i 111 1 1 1,1 i* 11 
 
 tatoi are legal. — which would be legal whether founded on 
 
 feelings of regard or religious sentiment — but by 
 some coercion or dominion exercised over the 
 testator against his will, by importunity so strong 
 that it could not be resisted. 
 
 hig c*ontent7o'£ '^^^^ ™^^® ^^^ °^ ^ legatee knowing the contents of a 
 Will. Will after its execution is, by itself, simply a proof of his 
 
 having been in the testator's confidence, and does not sup- 
 port the conclusion that he had himself interfered in the 
 making of it. 
 Persuasion, ira- The case of Hall V. Hall (x), shows how threats and 
 tkreate md violence used towards a testator may operate against 
 violence. the validity of his Will. The direction of Sir J. P. 
 
 Wilde, J. 0., to the jury who decided upon the facts, 
 contains also a concise and luminous declaration of 
 the law as to the effect of persuasion and vmportunity 
 when employed to influence a testator in the disposition 
 of his property. His lordship said : — " To make a good 
 Will, a man must be a free agent. But all influences are 
 not unlawful. Persuasion, appeals to the affections or ties 
 of kindred, to a sentiment of gratitude for past services, 
 or pity for future destitution or the like, these are all 
 legitimate, and may be fairly pressed on a testator. On 
 the other hand, pressure of whatever character, whether 
 
 {x) L. R. 1 P. & D. 481 ; 37 L. J. P. & M. 40. 
 
COXCEENEfG THE TESTAMENTAKT POWEE, 409 
 
 acting on the fears or the hopes, if so exerted as to over- Volition of tes- 
 power the volition without convincing the judgment of a ^g""^^^ 
 testator, will constitute undue influence, though no force 
 is either used or threatened. 
 
 Importunity or threats, such as the testator has not the importunity, 
 courage to resist, moral command asserted and yielded to JJ^*^^.* 
 for the sake of peace and quiet, or of escaping from dis- mand. 
 tress of mind or social discomfort, these, if carried to a 
 degree in which the free play of the testator's judgment, 
 discretion, or wishes are overborne, will constitute v/nd/ue Undue infln- 
 influence, though no fraud is either used or threatened, ^^^trf^ 
 In a word a testator may be led, not driven ; and his frand. 
 Wni must be the ofifepring of his own volition, and not the 
 record of some one else's." 
 
 The additional authorities enumerated below have refer- Authorities, 
 ence to the subject of fraud and undue influence rn matters 
 testamentary, and may be consulted to show how the 
 general principles that have been attempted to be set 
 forth, may be applied by the Probate Division of the 
 High Court of Justice to various sets of circumstances [y). 
 
 Courts of Equity are not, and have never been able to Equity jmis- 
 set aside Wills of either real or personal property obtained ^in^obtSned 
 by fraud, the proper remedy against the former having ^i fraud, Ac. 
 been exclusively vested in the Courts of Common Law, and 
 that against the latter in the Court of Probate (z). " But 
 there is a material difference between the Court of 
 Chancery taking upon itself to set aside a Will of 
 personalty on account of fraud and forgery in obtaining 
 or making that WUl, and taking from the party the benefit 
 
 (y) MiddUUm v. Forbes, cited in the great case of BoytR v. Moss- 
 1 Hag. Ecc. Bep. 395 ; Dv/rling v. borough, 6 H. L 2 ; and the Judg- 
 JjOveUmd, 2 Cmt. 235 ; Kernnell v. meut of Sir J. P. Wilde, in Guard- 
 Abbott, 4 Ves. 802 ; Gibson v. Jtyes, house y. Blackbum, L. E. 1 P. & 
 6 Ves. 266 ; Pratt v. Sarker, 1 D. 109 ; 35 L. J. P. &. M. 116. 
 Sim. 1 & 4 Enss. 607 ; Ewnter v. (z) 1 "Wms. Exors. Pt. 1, bk. 2, 
 Atkins, 3 My. & K. 113 ; Dv/meU ch. 1, § 2, 45 ; and see the judgt. 
 V. Corfield, 1 Kob. 51 ; Wei- of Lord Lyndhurst, in Allen T. 
 less V. MiddUbm, 1 Cox, 112 : M'Pherson, 1 H. L. 191. 
 
410 
 
 WILLS OF PERSONAL PKOPERTY. 
 
 of a Will established in the Ecclesiastical Court by his 
 fraud, not upon the testator, but upon the person dis- 
 inherited thereby, and claiming after the testator's death 
 against it. Fraud in obtaining a WUl infects the whole ; 
 but the case of a Will of which the •probate was obtained 
 by fraud on the next of kin is of another consideration" (a). 
 Fraud on tes- From this we see that a distinction is made between a 
 
 tator aad fraud » , 
 
 on next of kin. fraud perpetrated on a testator and a fraud perpetrated on 
 the next of kin, and that in the former case the matter is 
 cognizable exclusively in the Probate Division of the 
 High Court of Justice, whereas in the latter, the Chancery 
 Division may assume jurisdiction if appealed to. For 
 When fraud " where the fraud practised has not gone to the whole 
 whole Will. Will, but only to some particular clause, or if fraud has 
 been practised to obtain the consent of the next of kin 
 to the probate, the Courts of Equity have laid hold of 
 these circumstances to declare the executor a 'trustee for 
 the next of kin. Where there are no such circumstances, 
 the probate of the Will is a clear bar to a demand of per- 
 sonal estate " (6). 
 Power of Court The Court of Chancery was never able to direct a WiU of 
 case of Will not any kind obtained by fraud to be delivered up to be can- 
 the same as lu celled as it could and can a fraudulent deed, and we must 
 
 case of deed. . 
 
 infer from the judgments delivered by Lords Justices 
 ^dJsom v. Knight-Bruce and Turner, in the case of Hvndson v. Wea- 
 thenll (c) that the tendency oi that Court is to narrow 
 rather than increase its jurisdiction in the particular class 
 of cases now under consideration. " I really feel," said Lord 
 Justice Turner, " some alarm at the consequences of that 
 doctrine being introduced into the Court of fixing trusts 
 upon testamentary dispositions, because it is obvious that 
 if this is to be done in the case of solicitor and client, it 
 must equally be done in the case of guardian and ward," 
 
 (o) Lord Hardwicke, in Bamsby (b) Mitford on Pleading, oth ed. 
 
 V Powell, 1 Vea. 287, quoted by 300 ; St. § 440. 
 Lord Lyndhuist, in Allen v. (c) 5 De G. M. & G. 301 ; 1 Sm. 
 
 M'Fherson. & G. 604 ; 23 L. J. Ch. 820. 
 
CONCERNING THE TESTAMENTARY POWER. 411 
 
 and therefore in others also. Hindson v. Weatherill was 
 decided in the first instance by Vice- Chancellor Stuart, 
 and the judgments delivered in the Court of Appeal 
 reversing that of the Vice-Chancellor, seem to have excited 
 some surprise in the profession (d), from the apparent 
 disregard which the Lords Justices entertained for cases of 
 previously acjcnowledged authority, and which seemed to 
 indicate, or at least warrant the view held in the Court 
 below. 
 
 The old Ecclesiastical Courts had no jurisdiction over The old Eccle- 
 Wills of real property ; but in the case of mixed Wills, ^^^^ ^„ 
 that is to say, those which comprised both real and personal power overWilis 
 property, probate was granted of the entire document, ° ™ ^' 
 without prejudice, however, to the heir, who was unaffected , 
 by the probate, so far as it concerned the realty. 
 
 In consequence of this inability of the Ecclesiastical Consequences 
 Courts to take cognizance of a devise of realty, whenever realtylm!^ "^ 
 such an instrument was impeached on the ground of peached. 
 fraud, the heir was entitled as a general rule to have the 
 matter determined by a jury in one of the Superior Courts Court of Law 
 of Common Law, which, until lately, formed the proper trU)nxiTto de 
 tribunal for the establishment or condemnation of a dis- termine a wm 
 puted Will of realty — upon what was termed an issue of °^ ^^^^' 
 devisavit velnon — i.e., did he, the testator, devise or not? 
 
 We say above, with regard to the jurisdiction of the 
 ■ Common Law Courts over a Will of realty, that " until 
 lately" they alone decided issues of fact by trial with a 
 jury, but it has veiy recently been held by the present Court 
 of Appeal, that issues of fact for the decision of a jury are 
 not to be tried in the Chancery Division at all, but must 
 be tried as causes of the General List either in Middlesex 
 or at Assizes, before Judges of the Common Law Divisions 
 of the High Court of Justice. (Murdock v. Warner ; 
 Warner v. Murdock, Jan. 13, 1877.) 
 
 This issue was directed by the Court of Chancery— BiUstoestab- 
 itself possessing no original jurisdiction in regard to ''sh Wills. 
 {d) See tlie note appended to the Keport in 1 Sm. & G. 
 
412 WILLS OF PERSONAL PEOPEETY. 
 
 the establishing or setting aside of Wills — to the 
 Court of Law, after a bill had been filed to establish the 
 Will, and the object was to try the validity of the WiU 
 upon some alleged objection of fact, such as fraud, in- 
 New Act of capacity of the testator, and so forth (e). By two com- 
 paratively recent Acts of Parliament (/), the Court of 
 Chancery was declared bound to determine the matter 
 itself, unless it should appear that it might be more con- 
 veniently tried at Westminster, Guildhall, or at Assizes ; 
 which being so, the Chancery practice of directing a trial 
 Effect of Pro- on the issue devisavit vel non, has fallen into disuse ; 
 and 1858! ^^*' ^ before stated, the practice directed by these statutes 
 has been held to be altered by the recent Judicature Acts 
 and the Orders made under them. Finally, it is to be 
 remarked, that the Legislature, in constituting the new 
 Court of Probate, having given that tribunal jurisdiction 
 over Wills of realty (g) — provided they also regulate the 
 disposition of the personalty, and where such Wills are 
 executed according to English law, and are made since the 
 Wills Act, 1838 (h) — the consequence is that BiUs in 
 Equity to establish Wills have become rare, if, indeed, not 
 altogether obsolete (i). 
 
 («) 1 Pow. Dev. 626, 628, and n. 5th ed. ; Snell on Equity, 536 ; and 
 
 (/) 21 & 22 Vict. c. 27 ; 25 & 26 see Sm. Man, Eq. tit. 4, c. 3, s. 2, 
 
 Vict. c. 42. 401 ; and read the recent case of 
 
 (g) 20 & 21 Vict. c. 77, ss. 61-64 ; Clarke v. Cookson, as to the power ■ 
 
 21 & 22 Vict. c. 95. These statutes of a Judge of the Chancery Division 
 
 are cited as " The Court of Probate of the High Court of Justice to 
 
 Act, 1857," and "The Court of direct issues to be tried under the 
 
 Probate Act, 1858," respectively. Judicature Acts, L. E. 1 Ch. Div. 
 
 See latter Act, sect. 38. (N. S.), 746; 45 L.J. Ch. 762 (1876); 
 
 (Ji) Campbell v. Lucy, L. E. 2 also Warner v. Murdoch, mentioned 
 
 P. & D. 209 ; 40 L. J. Ch. 22. in the preceding page. 
 
 (i) 1 Darnell's Chanc. Prac. 773, 
 
CHAPTER VIII. 
 
 OP LOST, MISSING, DESTROYED, JCSB STOLEN WILLS. 
 
 " Theke can be no doubt that the contents or substance Contents of a 
 of a testamentary instrument may be established, though te established, 
 the instrument itself cannot be produced, if satisfactory 
 proof can be given that the instrument was duly made by 
 the testator, and was not revoked by him : for example, 
 either by showing that the instrument existed after his 
 death, or that it was destroyed in his lifetime without his 
 privity or consent. Many cases of the sort have been 
 decided " (a), and the Court of Probate since the Wills Act 
 " has been in the habit, without reference to the provisions 
 of that Statute, of allowing Wills to be proved by parol 
 only : but it has been done in cases fairly free from doubt 
 or suspicion " (6). 
 
 Before, then, the Probate Division of the High Court of l^^^<^°^ *« 
 
 . . .° Court of Pro- 
 
 Justice will admit to proof the contents of a Will not forth- bate. 
 
 coming, whether alleged to be lost or destroyed, it will 
 
 require the most cogent and irrefragable evidence : (1) that 
 
 such a Will ever existed ; (2) that it was in existence at time 
 
 of the testator's death (b) ; and the proof of a Will which 
 
 has been destroyed, or even only not forthcoming, is at all 
 
 times a matter to be approached by the Court with jealousy 
 
 (a) Sir John Nicholl in Davis v. L. J. P. & M. 75 ; 10 Jur. N. S. 
 
 Davis, 2 Add. 224 (1824). See 499 : Judgt. of Sir. J. P. WUde, 
 
 KnigMy. CboJ, 1 Lee. 413; Foster But see the remarks of Sir J. Hannen, 
 
 V. Foster, 1 Add. 462 ; Trevelyan in Sugden, v. Lord St. Leonards, 
 
 V. Trevdycm, 1 PhiU. 149 ; HubU L. R. 1 P. & D. (N. S.), 206 ; 45 
 
 V. ClarTc, 1 Hagg. Ecc. E. 118 ; L. J. P. & M. 1 ; and those of Sir 
 
 Martin v. Laking, Id. 245. G. Jessel, M.E. 
 (6) Wharram v. Wharram, 33 
 
414 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Leaning of the 
 Court. 
 
 Court ■will not 
 readily grant 
 probate. 
 
 Mode of 
 dealing with 
 this class 
 of cases. 
 
 and mistrust. But although the Court will, in a pri/md 
 facie way, regard these cases with distrust and suspicion, 
 yet it will, of course, look to their facts, the nature of the 
 evidence adduced to support them, and the whole of the 
 surrounding circumstances, and if convinced by the evi- 
 dence, will grant probate of the missing instrument. 
 Where, for instance, the Court was satisfied that a Will had 
 been suppressed or destroyed by the next of kin of a 
 testatrix, it not only granted a probate, but condemned the 
 suspected party in costs (c). And again, where affidavits 
 setting forth the due execution of a Will by the testator 
 and its subsequent loss or destruction, stated that there 
 was only one person who had an interest in having an 
 intestacy, that he had an opportunity of abstracting the 
 Will, and that he did not appear, though cited by the 
 Court to do so, probate was granted on such affidavits, 
 merely on motion, and without the applicants being before 
 the Court to give oral evidence of the facts (cf). 
 
 It must not, however, be supposed that the Court will 
 grant probate of a destroyed Will merely because the evi- 
 dence of its destruction is clear and irrefutable, for it is 
 the experience of the legal profession that Wills are fre- 
 quently destroyed through carelessness, inadvertence, or 
 ignorance ; and were the Probate Division of the High 
 Court of Justice to readily extend its aid wherever Wills 
 are so lost, it is obvious that a door would at once be 
 opened to fraud and deception. 
 
 The practice of this Division of the High Court of Justice 
 in cases of the class referred to, is indicated in the follow- 
 ing judgment of Sir J. P. Wilde, in a case where an 
 ignorant woman had destroyed her husband's Will under 
 the impression that it was a piece of waste paper (e) : — 
 
 (c) Podmore v. Wiatton, 33 L. 
 J. P. & M. 143. Referred to again 
 post, p. 422. 
 
 (d) Coleman v. Coleman, 14 "W". 
 R. 291 ; 13 L. T. 682. See also 
 Finch V. Finch, L. R. 1 P. & D. 
 
 371 ; 36 L. J. P. & M. 78. 
 
 (c) In the goods of Body, 34 L. 
 J. P. & M. 65 ; see also Moore v. 
 Whitehouse, 3 Sw. & Tr. 567 ; 34 
 L. J.. P. &M. 31. 
 
OF LOST -AND STOLEN WILLS, ETC. 41 5 
 
 " People are constantly destroying Wills, and the very 
 people who have destroyed them, afterwards ask for probate 
 of them. This is not one case, but one of a hundred. I 
 wish I had power to punish a person who destroys a Will, 
 but I have not. This, however, I always have done, and 
 always will do, I will have the Will propounded before I 
 admit it to probate ; I will give no assistance whatever to 
 a person who has destroyed a Will" (/). 
 
 If, on the other hand, it can be satisfactorily shown that ^ero Court 
 the destruction of a duly executed Will was not attribut- 
 able to neglect or default on the part of those whose duty 
 it was to take charge of it, the Court will allow probate on 
 motion, and will not put the parties to the trouble and 
 expense of propounding it in solemn form of law (g). 
 
 If a Will, traced to the possession of the deceased, and Presumption of 
 
 1, ,1 • _lj»j_i ■ I'lii'i* faxjt as to lost 
 
 last seen there, is not lorthcommg on his death, it is, as ^m teing 
 already elsewhere stated, presumed to have been de- destroyed by 
 stroyed by himself, and the presumption must have effect 
 unless there is suflficient evidence to overthrow it. This 
 presumption is one oifact, and therefore may be rebutted 
 by others which "raise a higher degi-ee of probability to 
 the contrary; and the onus probandi of the circum- 
 stances relied on is undoubtedly on the party propounding 
 the Will (h). 
 
 To summarize what has been said it may be observed Summary, 
 that in these cases of lost Wills, the following questions, 
 in the order given, must be asked :— (1.) Did the deceased 
 ever execute such a Will as the one suggested ? If he 
 did, then (2) What became of it ? (3) Was it found or 
 
 (/) By propovMdmg a Will is {h) Welch v. Phillips, 1 Moo. 
 
 simply meant its prochtdion for tie P. C. 299 (1836) t Judgt. of Parke, 
 
 judgment of the Court upon its B. ; and see Giles v. Warren, L. R. 
 
 authenticity, or otherwise. See the 2 P. & D. 401 ; 41 L. J. P. & M. 
 
 chapter on "The Court of Probate 59 ; Ma/rris y. Berrall, 1 Sw. & Tr. 
 
 and its Jurisdiction over Wills." 153 ; Sprigge v. Sprigge, L. R. 1 P. 
 
 (^) In the goods of Barber, L. K. 1 & D. 608 ; 38 L. J. P. & M. 4, a 
 
 P. & D. 267 ; 36 L. J. P. & M. 19 ; case where the testatoi* had become 
 
 Bwrls T. Bwrls, L. E. 1 P. & D. insane after executing his Will. 
 472 ; L. J. P. & M. 125. • 
 
416 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Onus is on the 
 party pro- 
 pounding a 
 WiU. 
 
 Questions of 
 lost Wills in- 
 termingled 
 vitli those of 
 reTocation. 
 Giles V. 
 Warren. 
 
 not at the death of the deceased, and was it perfect or 
 mutilated ? 
 
 With regard to the first question, the Court will 
 require "clear, strong, and irrefragable evidence, free 
 from suspicion or doubt in its sources, exact and certain 
 in its conclusions " (i). As to the second, we have just seen 
 that the party propounding the Will must be able to rebut 
 the presumptions of fact that a testator has himself de- 
 stroyed or revoked his Will, if it is shown to have been in 
 his possession, last seen there, and is not forthcoming after 
 his death. Circumstances of a very suspicious character, or 
 the declarations of the testator, repel the presumption (k), 
 and as the leaning of the Court is in favour of those who 
 fairly propound the contents of a lost or missing Will, and 
 against intestacy, it will readily lay hold of facts duly 
 proved, which go to support the Will (I). 
 
 Concerning the third question, it is obvious that if the 
 Will was found perfect there was no revocation ; but " if 
 it was not so found, then there is room and foundation for 
 the revocation which the law will presume in the absence 
 of testimony to rebut it." 
 
 It is seen from the foregoing remarks that these ques- 
 tions of lost, missing, and destroyed Wills are often mixed 
 up with that of revocation ; and in a case referred to in a 
 former portion of this work, we saw that when a Will was 
 by the direction of testator torn in pieces, and these were 
 afterwards put together again by him, the Court on being 
 asked to decide whether it had been revoked or not, pro- 
 nounced for the Will (m). 
 
 Now had the pieces of the Will been actually de- 
 stroyed, and assuming that there was no revocation, 
 that the Will was duly executed, and named an executor. 
 
 (i) WJiarram v. Wharram, 38 L. 
 J. P. & M. 75 ; 10 Jur. N. S. 499. 
 
 (k) WMtely v. King, 10 Jur. 
 1079 : 17 C. B. (N. S.), 756 ; Judgt. 
 of Erie, C. J. See also, ante, p. 339. 
 
 (Z) Fmch V. Finch, L. E. 1 P. & 
 
 D. 371 ; 36 L. J. P. & M. 78. 
 
 (m) Giles v. Warren, L. R. 2 P. & 
 D. 401 ; 41 L. J. P. & M. 59 ; ante, 
 p. 348 n. (o) ; see also Trevelyan v. 
 Trevelyan, 1 Phillim. 153. 
 
OF LOST AND STOLEN WILLS, ETC. 417 
 
 he might have propounded the contents of the Will, and 
 have obtained probate. In such a case, the Court would 
 not require any draft, copy, or other writing to indicate _ 
 what the contents of the Will were, but would, on being 
 satisfied by credible evidence, grant probate of the sub- 
 stance and effect. For, "if an original Will has been Kales of the . 
 lost or destroyed, after a testator's death, or has been de- or other WiJJs* 
 stroyed in his lifetvme, by another person without his 
 consent, or by himself without intention, and no executed 
 draft has been preserved, and no copy has been made, 
 probate may be obtained of its contents, or of its substance 
 and effect, if they can be established by credible evidence, 
 parol evidence being admissible " {n). 
 
 Such is the general rule, but as we have seen, it applies 
 only in cases free from doubt and suspicion, and where 
 the evidence is of a cogent and irrefragable character. 
 This being the quality of the evidence required, we 
 come now to consider what the quantity must be. First 
 then, the fact and the validity of the execution must be Evidence re- 
 established (o), and "the witnesses to establish these ?"^®^ *°^,^' 
 ,,,.,,. olisn lost WiU. 
 
 pomts must be the subscribed witnesses or the drawer and 
 
 writer, or persons who have read the WiU and have made 
 themselves cognizant, more or less, of its tenor" {p). 
 
 One only of the attesting witnesses, however, is sufficient One witness 
 to prove the due execution of a lost Will, and the same ^""^ ' 
 witness or any other competent person may prove the con- 
 tents, even where fraud is alleged (g). In the case of 
 Brown v. Brown (r), the Court of Queen's Bench went so Brovm v. 
 far as to place a lost Will on the same footing as any other 
 lost document, and allowed the loss to be proved as that 
 of a letter or receipt would be, admitting secondary evi- 
 
 (») Coote, Prolj. Pract. by Tris- (r) 8 E. &B. 886 ; 27 L. J. Q. B. 
 
 tram, 4tli ed. 93. 20. This case was cited "both in 
 
 (o) In the goods of Gardner, 1 argument ^and in the judgments 
 
 Sw. &Tr. 109 ; 27 L. J. P. & M. 65. delivered by all the learned judges 
 
 (p) Coote, 93. in the great case of Sugden v. St. 
 
 {q) Inthe goods of Gard7ter,sii'piii; Leonards; see next page. 
 BdUnv Ward, 27 L. J. P. & M. 56. 
 
 Brown. 
 
418 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Sir J. P. Wilde 
 on the principle 
 of Brown v. 
 Brown. 
 
 Admissibility 
 of secondary 
 evidence to 
 establish a 
 Will, now fully 
 established. 
 
 Kea^on of this 
 rule. 
 
 Lost Wills are 
 now regarded 
 
 dence of its contents as a ^natter of course. This decision 
 was criticised by Sir J. P. Wilde, J. 0., in his judgment in 
 the case of Wharram v. Wharra/m (s), where that learned 
 Judge said : — 
 
 " If this be a sound principle, the consequences are no 
 less obvious than momentous. The existence of a WiU, 
 its due execution and its subsequent loss, &c., must indeed 
 be proved, but proved by parol only, and no corroboration 
 is required. Furthermore, its contents can be proved 
 from memory. Property, however large, real or personal, 
 may thus be disposed of in a direction, however strange, 
 by the unsupported oath of a single witness. Upon such 
 a system it would be difficult to exclude either fraud or 
 mistake." 
 
 Notwithstanding this protest, the force of which, so far 
 as it goes, must commend itself to every mind, the law laid 
 down in cases preceding Wharram v. Wharram, as to the 
 admissibility of secondary evidence in proof of a WiU, is 
 the same now as then. The present Master of the Rolls 
 Sir G. Jessel, in delivering his judgment in the Court of Ap- 
 peal, in the recent case of Sugden v. Lord St. Leonards (t), 
 makes the following observations on the judgment of Sii- 
 J. P. Wilde, in Wharram v. Wharram, " Can we admit, 
 as a matter of course, secondary evidence in proof of a 
 Will ? Now I should have thought there could be but 
 one answer to that question ; and had it not been for the 
 doubt thrown out by a very eminent Judge in the case of 
 Wharram v. Wharram, I should have thought it would 
 have been impossible to argue the question .... The 
 whole theory of secondary evidence depends upon this, 
 that the primary evidence is lost, and that it is against 
 justice that the accident of the loss should deprive a man 
 of the rights to which he would otherwise be entitled. I 
 am at a loss to discover any reason whatever for dis- 
 
 (s) Awte, p. 413, n. (i). 
 
 (i!) L. R. 1 P. & D. (N. S.) 206 ; 
 45 L. J. P. D. & A. 64. 
 
OF LOST AND STOLEN WILLS, ETC. 419 
 
 tinguishing between the loss of a Will and the loss of a ^s on the same 
 deed in cases where a deed was required." His lordship lost documents. 
 goes on to point out that, on principle, there never was 
 any possible distinction between the proof of a deed and 
 that of a Will ; that a lost, stolen, or destroyed Will before 
 1 Vict. c. 26 — that is at the time when Wills were regu- 
 lated by the Statute of Frauds (w) — might have been proved 
 by secondaiy evidence (a;), and that there was nething in 
 the Wills Act, 1838, to prevent this being done after its 
 enactment . . . "It appears to me," says the learned 
 Judge, in concluding his remarks on this point, "clear 
 both on principle and authority, not forgetting especially 
 the case of Brown v. Brown (y), which the Lord Chief 
 Justice mentioned, that you could let in secondary evidence 
 to prove a last Will " (z). 
 
 To the same effect is the opinion of the present learned Sir J. Hannen 
 President of the Probate, Divorce, and Admiralty Division °° **!« ™''J^'=*- 
 of the High Court of Justice . . . "there is not in my judg- 
 ment any difference in the principles of law applicable to 
 the case of a lost Will and to the case of any other lost 
 document '' (a). From these extracts we may conclude 
 then, in the first place, that notwithstanding the stringent 
 provisions of the Wills Act 1838 — that no Will shall be 
 deemed valid unless the same be in writing-^yet secondary 
 evidence, both written and verbal, may be given of its 
 contents : that is, when the absence of the document 
 itself is satisfactorily accounted for ; secondly, that the case The authority 
 of Brown v. Broiun (y), is a conclusive authority in support ^ -Stow» v. 
 of such proposition, particularly since the marked commen- fully estab- 
 dation bestowed upon it by the distinguished judges who ^^^'''^■ 
 decided the great cause of Sugden v. Lord St. Leonards. 
 
 (u) 29 Car. II., c. 3. primary evidence. 
 
 (x) The meaning of secondary {y) 8 E. & B. 876 ; 27 L. J. Q. B. 
 
 evidence is, that it is a substitute for 174. 
 
 pri/mmry evidence, which, if it exist, (») L. R. and L. J. P. D. & A. 
 
 must be given ; in other words, the 64, as in next note, 
 
 function of secondary evidence, (a) Sir J. Hannen in Sugden v. 
 
 when admissible, is to supply the Lord Si. Leonards, L. E. 1 P. & D. 
 
 loss, by accident or otherwise, of (N.S.), 206, 45 L. J. P. D. &A. 14, 
 
 E J5 ii 
 
420 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Evidence must 
 be cogent and 
 clear. 
 
 Eules of evi- 
 dence same as 
 those in Com- 
 mon Law Divi- 
 sions of the 
 H.C.J. 
 
 Higham v. 
 
 Thomas, de- 
 
 At any rate, where the Court admits the secondaiy 
 evidence, it will, as we have seen, require such evidence to 
 be of the most satisfactory character — that is, the best 
 that can be produced- — -and if the witnesses called cannot 
 prove the due execution of a Will, the* written declarations 
 of a testator on the subject will not be sufficient to show 
 that he had executed his Will (b). 
 
 The rules of evidence observed in the Probate Division 
 in the trial of questions of fact, are the same as those of 
 the Common Law Divisions (c), and in these, one witness is 
 generally sufficient as to the due execution of a Will. A 
 very important rule of evidence familiar in Common Law 
 proceedings was observed some time since by the Court of 
 Probate in a case of a lost Will (d). Probate of a draft of 
 this Will was asked for, and the question was, had the 
 Will been duly executed ? The solicitor who had prepared 
 the Will was dead, but in his ledger there was an entry in 
 his handwriting, admitting payment of his charges for 
 drawing and attending the execution of a Will. On the 
 authority of Higham v. Ridgway (e), the Court held that 
 this was sufficient evidence of the execution of the Will, 
 and granted probate of the draft. 
 
 It will be remembered that the principle established by 
 the leading case of Higham v. Ridgway was that, if a 
 person have peculiar means of knowing a fact, and make 
 a written entry of that fact, which is against his interest 
 at the time, it is evidence of the fact as betw^een third 
 persons after his death. 
 
 In the above case of In the goods of Thomas, the Will 
 was shown to have been left in the custody of the solicitor, 
 among whose papers after his death it could not be found ;. 
 
 (J) Tn the goods of Bipley, 1 Sw. 
 & Tr. 68. In this case, whidh is a 
 very interesting one, the testator, it 
 vpas said, ■ had made a Will and 
 codicil in India, copies of wHch he 
 had sent to England. In 1857, he 
 having been killed in the Mutiny, 
 these papers were not forthcoming, 
 
 whereupon the Court decided that 
 the so-called copies were not ad- 
 missible to probate. 
 
 (c) 20 & 21 Vict. c. 77, s. 33 
 (1857). 
 
 (d) In the goods of Thomas, i\ 
 L. J. P. & M. 32. 
 
 (e) 2 Sm. L. C. 270. 
 
OF LOST AND STOLEN WILLS, ETC. 421 
 
 it did not appear that the Will had been destroyed by his 
 fault (/), and it was proved by the entry in his ledger to 
 have been duly executed. Accordingly, the course to be 
 taken by the Court was clear, and no difficulty or suspicion 
 could arise as in the cases we have before considered. 
 
 With regard to the practice of the Probate Division of the Probate of 
 High Court of Justice as to grants of probate of draft Wills -vfiu. 
 where the Will itself is lost, the case cited below should 
 be perused (g). On the death of a Miss E. G. Whatton, Podmore t. 
 in 1859, the defendant obtained a grant of letters of ad- W'''«««»- 
 ministration of her effects, the deceased being supposed 
 to have died without a Will. Some time afterwards the 
 plaintiff, as one of two residuary legatees, instituted a suit 
 in the Court of Probate to obtain probate of the draft of 
 a Will which. he alleged the deceased had made, and which 
 was, as he said, unrevoked at the time of her death. The 
 usual declaration and pleas were followed, and the parties 
 having joined issue. Sir J. P. Wilde, without a jury, de- 
 cided for the plaintiff, on the facts of the case, which 
 appeared in the report of the judgment. Some of the 
 observations of the learned judge may advantageously here 
 be quoted. He says : — " The evidence in this case has judgment of 
 raised an issue, casting a duty, not free from difficulty, ^.^- ^■ 
 upon the Court. The plaintiff seeks probate of a certain 
 draft of a Will, as containing the sum and substance of the 
 Will of E. G Whatton. The Will itself is not produced. 
 The first question is, did the deceased ever execute such a 
 Will ? In the absence of the Will itself, this portion of Nature of the 
 the case requires clear, strong, and irrefragable evidence, e"^'.'l'5"<=e re- 
 
 . . ' . . . quired to proTO 
 
 free from suspicion or doubt in its sources, exact and a Will not 
 
 certain in its conclusions. The attorney, who prepared it fo'^^^o™"'^' 
 
 from her personal instructions, together with his partner will must have 
 
 and clerk, who witnessed its execution, speak clearly and been executed. 
 
 positively to that fact. They produce the original draft Original draft ; 
 
 I books, ka., of 
 
 (/) See In the goods of Barter, (g) Podmore v. Whatton, 33 L. J. 
 L. R. 1 P. & T). 267 ; 36 L. J. P. P. & M. 143. 
 & M. 19. 
 
432 
 
 WILLS OP PERSONAL PEOPERTY. 
 
 the solicitor 
 who drew the 
 Will. 
 
 The chief ques- 
 tion where a 
 Will is not 
 forthcoming 
 and is sought 
 to be proved. 
 
 Question to be 
 determined 
 before any pre- 
 sumption as to 
 its revocation 
 or otherwise 
 can have effect. 
 
 All cases of 
 this kind de- 
 pend upon 
 circumstances 
 and evidence 
 adduced. 
 
 Evidence to 
 show unfair 
 dealing of 
 person alleging 
 destruction of 
 WiU. 
 
 Court to inves- 
 tigate evidence. 
 
 Podmore v. 
 Wliatton. 
 
 of the Will. The hooks of the attorney's office are also 
 produced, and the charges for drawing, engrossing and 
 eooecuting the Will are there found, which charges Miss 
 Whatton afterwards paid. This testimony leaves no douht 
 in the mind of the Court that a Will, of which the draft 
 produced contains the substance, was actually and duly 
 executed by Miss Whatton .... The Will having been 
 thus made, the next and most important question is what 
 became of it ? On the part of the plaintiff it was urged 
 that this was an inquiry upon which the Court was not 
 bound to enter ; that the Will once made would only be 
 revoked by the specific methods indicated in the Wills 
 Act, 1838 ; and that unless the defendant established its 
 revocation the Court was bound to pronounce it unrevoked 
 and admit it to probate. On the part of the. defendant it 
 was argued that as the Will itself was not forthcoming, 
 and had been last seen in the custody of the testatrix, 
 the Court must presume that she had herself revoked it. 
 The Court cannot accede to either of these views. A 
 material question of fact has to be decided in the case 
 before any presumption arises on either side, and it is this : 
 Was the Will found at the decease of the testatrix, or 
 not ? If it was found at her death, and in an unmutilated 
 state, then she did not revoke it. If it was not so found, 
 then there is room and foundation for the revocation which 
 the law will presume, in the absence of testimony to rebut 
 it. In most cases the solution of this question presents 
 no difficulty ; for the depositories of the deceased are duly 
 searched by those whose good faith is not impugned, and 
 who can vouch for the fact one way or the other. But in 
 the present case it is far otherwise ; a large body of evi- 
 dence has been produced tending directly to question the 
 fair dealing of the defendant, who had sole access to his 
 sister's papers, and the charge of suppressing this Will was 
 but thinly veiled, though faintly pressed against him. In- 
 to the truth of this it is the duty of the Court with more 
 firmness now to enter." 
 
 This having been done, the Court came to the conclusion 
 
OF LOST AND STOLEN WILLS, ETC. 423 
 
 that the Will having been suppressed by the defendant, 
 who was the deceased lady's next of kin, decreed probate 
 of the draft Will and condemned the defendant in the 
 costs of the suit (h). 
 
 Here then we see the principles which are to guide the 
 Court in granting probate of a draft Will, when the actual 
 Will is not found, and fraud is alleged and shown to be 
 the reason why it cannot be found. So plainly and in- 
 telligibly is the doctrine enunciated that no explanatory 
 comment is needed thereon, so we proceed. 
 
 It sometimes happens, however, that although a Will is Where codicil 
 lost, a codicil, having reference to that Will, is forth- ""^'^ 
 coming, as in the case of In the goods of Greig (i). There, 
 a testator, by a testamentary paper, purporting to be a 
 codicil to his last Will and testament, bequeathed his 
 balance at his banker's to his wife. No Will could be 
 found, although a Will was proved to have been in exis- 
 tence, and in the testator's possession previous to the date 
 of the codicil. The Court was of opinion on this state of 
 circumstances, that, looking at the dispositions of the 
 codicil, the testator intended it to be perfectly indepen- 
 dent of the Will, and to operate separately from it, and 
 granted administration with codicil annexed until the 
 Will could be found. 
 
 In deciding this case, Sir J. P. Wilde, J. O., stated that Orimmod v. 
 the principle by which the Court should be guided in ^''^^''*- 
 these cases was that laid down by Sir Cresswell Cress- 
 well, J. 0., in Grimwood v. Cozens (Jc), where that learned 
 judge said : — " The question is entirely one of the inten- 
 tion of the deceased. Where a Will and codicil have been Separate 
 in existence, and the Will is afterwards revoked, it must operation of 
 be shown by the party applying for probate of the codicil 
 alone, that it was intended by the deceased that it should 
 operate separately from the Will, otherwise it would be 
 
 (h) Read with the above case, (i) L. E. 1 P. & D. 72 ; 35 L. J. 
 
 Moore v. Whitehoim, 3 Sw. & Tr. P. & M. 113. 
 567 • 34 L. J. P. & M. 31. (&) 2 Sw. & Tr. 368. 
 
424. 
 
 WILLS OF PERSONAL PROPERTY. 
 
 BUtck T. 
 
 An afvrmatwe 
 intention to 
 revoke is not 
 necessary. 
 
 presumed that, as the Will is destroyed [or missing] the 
 codicil is also revoked." 
 
 So that, if it be required to obtain probate of a codicil 
 to an alleged missing Will, it must be shown that the 
 latter has actually been in existence, that it was in testa- 
 tor's possession before the date of the codicil, and that 
 he intended such codicil, at' all events, to be a distinct 
 instrument, which should operate by its own force sepa- 
 rately from the Will to which it had reference. 
 
 Here is another case in point. A testator duly executed 
 a Will and codicil, and subsequently a paper which pur- 
 ported to be a codicil to his last Will and testament. This 
 codicil referred to a bequest not contained in the Will, but in a 
 deed of gift executed after the Will, and before the codicil. 
 
 On the death of the deceased, the Will, which with the 
 first codicil he had retained, was not forthcoming. Held, 
 that as the second codicil which he had given to a legatee 
 named therein, was not revoked by any of the modes 
 indicated by 1 Vict. c. 26, s. 20, it remained in full force 
 and effect, and was entitled to probate {I). In his 
 judgment in this case, Sir J. P. Wilde, J. 0., reviewed 
 the decisions (m) concerning the relation of the codicil 
 to the Will under such circumstances, and declared them 
 to be in an unsatisfactory state. However, in his Lord- 
 ship's opinion, the Wills Act, 1888, does not make an 
 affi/rmative intention to revoke necessary, and, therefore, 
 unless an actual revocation be required, the statute would 
 not interfere with the law as laid down in decisions re- 
 ferred to. The same doctrine as to the non-revocation of 
 a codicil to a lost Will, was followed in a still more recent 
 case (n), and the principle laid down in Black, v. Joblincf 
 was affirmed. We may, therefore, consider the law on 
 this particular part of our subject to be now fully settled. 
 
 (I) Black V. JoUing, L. E. 1 P. 
 & D. 685 ; 38 L. J. P. & M. 74. 
 
 (m) Barrow v. Barrow, 2 Lee, 
 335 ; Medlycott v. Assketon, 2 Add. 
 229 ; Tagart v. Hooper, 1 Curt. 
 289 ; In the goods of Salliwell, 4 
 
 N. C. 400 ; Clogstoun v. TVolcott, 6 
 N. C. 623 ; and Orimwood v. Oosens, 
 2 Sw. & Tr. 364, were considered. 
 
 (») In the goods of Savage, L. K. 
 2 P. & D. 78 ; 39 L. J. P. & M. 
 25. 
 
OF LOST AND STOLEN WILLS, ETC. 425 
 
 One of the most important and interesting cases that Sugdm v. 
 has ever occurred on the main subject under discus- iZnards. 
 sion, namely, lost Wills, or those not forthcoming 
 after the testator's death, is the recent one of Sugden 
 V. Lord St. Leonards (o). There, the testator, in 
 January, 1870, made and executed a holograph Will, to 
 which he afterwards added on different occasions eight 
 codicils, written by himself, the last bearing date 
 20th of August, 1873. The only persons who had ever 
 seen the Will were the attesting witnesses and the 
 testator's daughter, the Hon. Charlotte Sugden, a lady 
 to whom the testator was particularly attached, and whom 
 he was accustomed to consult on all his affairs, testamen- 
 tary and otherwise ; Miss Sugden not only read the Will 
 at the time of its execution, but on several subsequent 
 occasions. The' document in question, with its codicils, 
 was securely placed by Lord St. Leonards in a despatch box, 
 the key of which he himself always kept in his possession, 
 but the box itself — during two attacks of illness before his 
 death — had been by him given into the custody of Miss 
 Sugden, who retained it until her father's decease, keeping 
 it in an accessible drawer in her bedroom. Lord St. Leo- 
 nards died in Januaiy, 1875, and when the box con- 
 taining his papers was opened, it was discovered that 
 the Will was missing, all the codi^cils, however, appearing. 
 Immediately this fact was ascertained. Miss Sugden, at 
 the suggestion of her solicitor, wrote down from memory, 
 unassisted by any person or any document, what she 
 remembered of the contents of the Will, by which, it 
 ghpuld be observed, she' herself was greatly benefited. 
 Of the contents of the Will so written. Sir James 
 Hannen — in a judgment characterized by the Lord 
 Chief Justice as a luminous one — decreed probate 
 in November, 1875, himself determining issues of fact 
 without a jury. There were two questions raised in this Two questions 
 case, and which were considered in the reverse order to '° ^^^ ''^'"'' 
 
 (o) L. R.1P. &D..(N. S.),App 154;45L.J.P.D.&A.l;onappeal,49. 
 
426 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Presumption 
 of revocation 
 when Will not 
 forthcoming 
 rebuttable. 
 
 The Court need 
 not suggest a 
 theory to 
 account for 
 the non-ap- 
 pearance of 
 a WUl. 
 
 that in which they are here stated : First, was the Will 
 of Lord St. Leonards destroyed by him animo revo- 
 candi ? and, Secondly, if not, what were the contents 
 thereof? it being fully admitted that his lordship had 
 duly executed the Will referred to. On the former of 
 these two points. Sir J. Hannen said : " This is a ques- 
 tion of fact. Undoubtedly where a Will has been shown 
 to ha.ve been in the custody of the testator, and it is not 
 found at his death, the presumption, in the absence of 
 evidence to the contrary,' is that the testator destroyed it. 
 But that presumption may be rebutted by evidence lead- 
 ing to the conclusion that the testator did not do that, 
 which in the absence of evidence to the contrary it is 
 presumed he had done. That evidence must be neces- 
 sarily of great variety, according to the various circum- 
 stances of the cases that are presented to Courts of 
 Justice. . . . The first element in this consideration 
 of whether or not a testator has destroyed his Will is to 
 be found in the instrument itself." Sir James then, 
 after reviewing the facts of the case deposed to by wit- 
 nesses, says : " There remains this state of things for me 
 to deal with : evidence which I accept as true, that down 
 to the latter months of the testator's life, and long 
 after it was possible for him to have access to the Will- 
 box or the Will, he was expressing his adherence to the 
 devise of the K. estate to F. S., which, as we know, was 
 contained and contained only in the Will not forthcoming. 
 . . . . These [and other] statements lead me to the 
 conclusion that at the time when they were made by the 
 testator, he believed that Will was still in existence. . , . 
 I am not called upon to suggest any thing which would 
 account for the Will not being found at the testator's 
 death, . . . It is sufficient for me to say that, behoving, 
 as I do, the testator made the statements showing a belief 
 in his mind that the Will was in existence at a time subse- 
 quently to that at which he could have revoked it, I am led 
 to the conclusion that he had not in fact revoked it at any 
 time when he had the opportunity of getting access to it." 
 
OF LOST AND STOLEN WILLS, ETC. 427 
 
 As to the other point of this case, namely, the accuracy Qaestion as to 
 of the contents of the lost Will, furnished by Miss Sugden, J'^j*'^^"* 
 Sir James Hannen based his decision in their favour on 
 several considerations. That lady was shown to have been Situation of 
 "the daily companion for many years of one of the depming'to 
 greatest lawyers that ever lived . . . she was his assistant contents of 
 and amanuensis in the preparation of the later editions of portance. 
 his works, and she appears to have been always with him 
 upon the many occasions on which he dealt with his tes- 
 tamentary papers and dispositions. She had, therefore, 
 so to speak, a special training, which put her in a place of 
 much greater advantage than otherwise might have been 
 expected of a lady imder ordinary circumstances. In ad- 
 dition to that, she had ample opportunities of becoming 
 acquainted with the contents of this lost instrument in 
 particular." Further, Miss Sugden, as to various details „ , 
 
 of the contents of her father's Will, was amply corrobo- contents 
 rated by the codicils and the other papers found with corroborated, 
 them, although it appeared in some particulars she was 
 either inaccurate or unsupported by other evidence ; but 
 it was not necessary that she should have been corrobo- 
 rated in every particular. " It is sufficient," said Sir J. Nature of the 
 Hannen, " if I find that independent support is given to required^ '"^ 
 Miss Sugden's statements in so many instances, that it 
 raises in my mind the conviction that she is to be de- 
 pended upon even in those matters in which I do not find 
 corroboration elsewhere." 
 
 The decree of Sir J. Hannen having been appealed Sugden v. 
 against, the Court above, in March, 1876, unanimously affirmed on 
 affirmed it, being satisfied that the contents of the Will appeal, 
 furnished by Miss Sugden were fully coiToborated, and 
 that the presumption of revocation by the testator of his 
 Will was rebutted by evidence. 
 
 The Court also overruled in the course of its decision Declarations of 
 
 , ^ a testator 
 
 the case of Quick v. Quick (p), and held — Lord Justice made before 
 
 (jp) 3 Sw. & Tr. 442 ; 33 L. J. P. the execution of his Will are not 
 & M. 146, which decided that the admissible as evidence of its con- 
 declarations of a testator made after tents. 
 
428 
 
 WILLS OF PERSONAL PROPERTY. 
 
 or after 
 executing his 
 ■WUl now 
 admissible to 
 prove its 
 contents. 
 
 Cases in whict 
 testator's de- 
 clarations are 
 inadmissible. 
 
 The criminal 
 law as to the 
 stealing, &c., 
 of Wills. 
 
 Mellish dissenting — that declarations made by a testator, 
 whether before or after the execution of his Will, are 
 admissible as evidence of its contents (q). 
 
 "There, are, no doubt," said the Lord Chief Justice, 
 " cases in which the declarations of a testator are inad- 
 missible. Thus a statement by a testator that he had duly 
 executed his Will could not be received, as was decided in 
 the case of The goods of Ripley. (See ante, p. 417, n. (6).) 
 .... So, where there is a patent ambiguity on the face 
 of the Will, arising either from an error in the designa- 
 tion of the person who is to take, or of the property 
 bequeathed, which makes the execution of the Will 
 impossible, the instructions or other declarations of the 
 testator cannot be resorted to to remove the difficulty." 
 
 With regard to Wills of either realty or personalty, 
 stolen, fraudulently suppressed, destroyed, cancelled, 
 obliterated, or concealed, either wholly or in part, either 
 during the lifetime of a testator, or after his death, 
 the criminal law provides for the punishment of the 
 offence indicated. By the statute 24 & 25 Vict. c. 96, s. 29 
 (The Larceny Act), it is enacted that whoever shall commit 
 any of the acts mentioned above, shall be guilty of felony, 
 and shall be liable to be kept in penal servitude for life, 
 or for any term not less than five years (r), or be im- 
 prisoned for any term not exceeding two years, with or 
 without hard labour or solitary confinement. The Act 
 also provides that the conviction of an offender against 
 this particular portion thereof shall not prevent, lessen, or 
 impeach any other legal remedy which the party aggrieved 
 may have, although the conviction cannot be given in 
 evidence against the offender in any action brought by the 
 other party ; nor, if the offender has been compelled pre- 
 
 (g)^»fe,n.(o),p. 422. Thelearned 
 Judges constituting the Court of 
 Appeal, were the Lord Chief Justice 
 of England, the Master of the Rolls, 
 and Lords Justices Mellish and 
 James, and Sir E. Baggallay, J. A. 
 
 (r) This statute says three years, 
 hut by a later statute it is declared 
 that no sentence of penal servitude 
 shall be for less than five years. 
 27 & 28 Vict. c. 47, s. 2. 
 
OF LOST AND STOLEN WILLS, ETC. 429 
 
 viously to being charged with the offence, by any compul- 
 sory legal process, to disclose on oath the act committed 
 by him in regard to the "Will ; and lastly, the felony in 
 question cannot be tried at Quarter Sessions. 
 
 We may conclude the present chapter by quoting from Wills may, 
 Sir James Hannen's judgment in Sugden v. Lord St. „£ thefr' ^ ""^ 
 Leonards, on one other point of some importance. The makers, be de- 
 
 *• _ .,.-•., posited for safe 
 
 learned President says thereon, ' i particularly desire that custody at the 
 it should be known to the public, that the law has pro- g^t^'^o^t^g" 
 vided by the 20 & 21 Vict. c. 77, s. 91, that Wills may. Probate Di- 
 upon ■ the payment of a small fee, be deposited at the jjjgji Court of 
 Registry of this Court [now at Somerset House], sealed and Ji^stice. 
 sacred, so that their contents will not be known until the 
 proper time arrives — namely, the death of the testator." 
 
 The proceeding recoinmended above must not be con- 
 founded with the registration of Wills, as to which see 
 the perspicuous note in Hayes and Jarman's Forms of 
 Wills, p. Ill (a). 
 
an irreTocable 
 instrument. 
 
 CHAPTER IX. 
 
 ON MUTUAL OR CONJOINT OR RECIPROCAL WILLS; JOINT, 
 CONDITIONAL, AND CONTINGENT WILLS; OF CON- 
 DITIONS IN ORDINARY WILLS ; THOSE MADE BY IN- 
 TERROGATORIES, AND SHAJa WILLS. 
 
 Mutual or MUTUAL or CONJOINT Wills, in the sense to be under- 
 
 onjoin 1 . g^QQ(j here, are those made by two testators by distinct 
 papers, so as in reality to constitute a compact, con- 
 tract (a), or testamentary agreement between them, that 
 the survivor shall have certain specified benefits, powers, 
 &c., after the death of the other. 
 
 No Will can be Mutual or conjoint WUls would seem, then, from their , 
 nature and object, to be intended as irrevocable testamen- 
 tary papers, but such instruments are unknown to the law 
 of England, and what is called a mutual Will is there- 
 fore in fact revocable by either of the parties to it Q>). 
 By our law, a Will is in all cases ambulatory and 
 revocable until the death of the testator (c), even if 
 the testator should distinctly declare on its face that it 
 shall be irrevocable ; consequently, mutual Wills in the 
 actual and full sense of the term, cannot take effect in 
 this country. We have seen, however, that although 
 mutual Wills cannot stand with all the incidents of valid 
 testamentary instruments, and especially as to their fea- 
 ture of revocabiUty, yet the better opinion seems to be 
 that the papers, inasmuch as they form, as Lord Camden 
 
 ■ {a) Dufawr v. Pereira, 1 Dick. (1822.) This was a case, however, 
 
 421 : Judgt. of Lord Camden (1769) ; of one instrument only. 
 
 see also 2 Hargreaves, Jur. Arg. 272. (c) 1 Wms. Exors. pt. 1, bk. 2, 
 
 (J) Hobson, V. Blackburn, 1 Add. ch. 3. 124. 
 274: Judgt. of Sir J. NichoU. 
 
ON MUTUAL OK CONJOINT WILLS, ETC. 431 
 
 said, a contract, they might, cceteris paribus, he enforced 
 in Equity (d). ^ 
 
 A Keciprocal Will is only another term for a Mutual or Eeciprocal 
 Conjoint Will, and considered solely as testamentary in- 
 struments there is no difference between them (e). 
 
 "Testamenta reciproca sunt quibus duse personae in 
 una eademque scriptione se mutuo heredes instituunt, 
 quod maxime eve nit in conjugibus" (/). Reciprocal tes- 
 taments are those in which two individuals in one and 
 the same writing, mutually constitute each other their 
 heirs [or legatees], and which especially happens among 
 married persons. The following case furnishes an illus- 
 tration of a Reciprocal Will : — Two unmarried sisters made 
 Wills in favour of each other, and shortly afterwards one 
 of them married. This revoked her Will, and the ques- 
 tion for the Court of Chancery was, whether the other 
 Will was also revoked, and the Court, although considering 
 the case a hard one, held that it was not (g). 
 
 A Joint Will is, as its name imports — that is, if we use Joint Will, 
 the term as one of different import from conjoint — one 
 single instrument made by two or more testators, and 
 such a Will is entitled to probate as that of the survivor 
 of the testators, because, being joint, it is a Will, and the 
 WiU of all and each of the parties (h). 
 
 But where a paper was neither a Joint nor Conjoint 
 WiU — in the sense above indicated — as where it was 
 plainly to have no effect until the death of all the tes- 
 tators, probate was not gi-anted in the lifetime of either of 
 them (i). 
 
 A Conditional Will is one that is to take effect upon Conditional 
 
 Will. 
 
 {d) Also see Walpole v. Cholinon- (g) Hinckley v.] Simmons, i Ves. 
 
 deley, 7 T. R. 138, cordra; Walpole 160. 
 
 V. Orford, 3 "Ves. J. 402 (1797) ; but (h) See In ths goods of Stracey, 
 
 particularly -DM/oMrv.Pemr»,supra. Deane & Sw. 6. Husband & Wife. 
 
 (e) Dodd & Brooks, Prob. Prac. (1855.) In the goods of Love- 
 
 174. groee, 2 Sw. & Tr. 463 ; 31 L. J. 
 
 (/) Mackeldy, Jui-. Eom. bod. P. & M. 87. 
 
 usit 649 (quoted by Dodd & (i) In the goods of Baine, 1 Sw. 
 
 Brooks). &Tr. 144. (1858.) 
 
432 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Codicil giving 
 authority to 
 ■executors to 
 adopt or reject. 
 
 the happening or not of some event, or upon such and 
 such a stat^ of circumstances being or not being in 
 existence at such and such a time named in the Will, or 
 during a certain period. 
 
 A test for ascertaining whether a Will is contingent, 
 or operative at all events, is the question whether 
 the disposition of property is dependent upon the happen- 
 ing of some event referred to in the Will, or whether 
 the imminence of such event is Tnerely a reason for 
 making the Will. In the former it would be purely con- 
 tingent ; in the latter it would not ; and this appears 
 to have been the true test for ascertaining the* contin- 
 gency or not of a Will, before it was formally enunciated in 
 the decision referred to below (k). The following case also 
 illustrates this statement : — A testator, purposing to take a 
 journey, made a Will commencing thus : " In the event of 
 any fatal accident happening to me, being about to travel 
 by railway, I hereby leave all my property, &c." Now the 
 question here was, did the testator makfe this Will only 
 to take effect in the event of a fatal accident happening 
 to him, or did he make it because the occurrence of such 
 an event was probable or imminent ? And the Court of 
 Probate held that the Will was not to be effective only 
 in the event of the testator's death by accident durvng the 
 journey he was about to take ; he having made the Will 
 simply because the likelihood of an accident occurring, 
 induced him to take the precaution of making his 
 Will for all purposes (Z). 
 
 It is competent to a testator to put a clause into a 
 codicil to his Will authorizing his executors to add the 
 codicil or reject it at their pleasure, as in the following 
 case :— :A testator, after making a Will and codicil, made 
 a second codicil, which thus concluded : " I give my wife 
 
 (Jc) In the goods of Porter, L. K. {I) In the goods of Doison, L. E. 
 
 2 P. & D. 22 ; 39 L. J. P. & M. 12 ; 1 P. & D. 88 ; 35 L. J. P. & M. 
 
 and see Roberts v. Roberts, 2 Sw. & 54. ^ 
 Tr. 337 ; 31 L. J. P. & M. 46. 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 438 
 
 the option of adding this codicil or not, as she may- 
 think proper or necessary." The widow, who was also sole 
 executrix, rejected the codicil, and the Court decreed 
 probate of the Will and first. codicil only, on the ground 
 that the absolute animus testandi on the testator's 
 part as to the second one was wanting (m). In this case 
 the validity of the later codicil was contingent on the 
 approval of the widow, and was written simply to give 
 her the opportunity of expressing approval of it or not ; 
 accordingly the Court gave effect to what was clearly in- 
 tended, viz., that the codicil should stand or fall by the 
 decision of the executrix. 
 
 The intention of a testator must, of course, be deduced Intention 
 
 . ,, , . /■ 1 1.11 gathered from 
 
 from all the circumstances oi each case, togfetner with the circiuiistances, 
 
 language employed in the instrument. The following case 
 
 will illustrate our meaning : — A. being seriously ill, made 
 
 a Will, in which he stated that, in the event of his 
 
 death at B., he wished his property to be disposed of in 
 
 a certain specified manner. He recovered, however, and 
 
 left B., and the Court, some time after, decreed probate 
 
 of this Will, grounding its decision on the circumstances 
 
 of the case, which showed that the deceased had executed 
 
 the paper in the apprehension of death, and not with a 
 
 view to make its effect conditional on his death at B. (n). 
 
 On the other hand, where a testator, who had Conditional 
 
 ■,, . Will made 
 
 already in 1866 executed an unconditional Will in after another, 
 England, executed, some months later, while in India, y"^™*^'" 
 the following paper : — " This is to certify that I, K. N., 
 &c., do at this time enjoy good health, and am of a 
 proper and sound state of mind. And I write this as 
 my last Will and testament, in case of a sudden or acci- 
 
 . (m) In the goods of John Smith, be done ; nor, in consequence" of the 
 
 L. K. 1 P. & D. 717 ; 38 L. J. P. Wills Act 1838, s. 20, can a man 
 
 & M. 85. N.B. — Lord Penzance bequeath to another the power to 
 
 points out the diiference between revoke any portion of his WiU. 
 
 such a case as that mentioned, and (n) In the goods of Martin, L. E. 
 
 where a testator affects to give a 1 P. & D. 380 ; 36 L. J. P. & M. 
 
 person the right to make a Will fSr 116. 
 him after his death. This could not 
 
434 WILLS OF PERSONAL PEOPERTY, 
 
 dental death befalling me in India, &c., &c." Testator 
 died in England, in 1872. On the authority of In the 
 goods of Porter, to which reference has been made, Sir 
 J. Hannen held, that the Will of R. N. was to take effect 
 conditionally, that is, in the event of his dying in India, 
 which not happening, the Will was inoperative (o). It is 
 easily seen, by applying the test suggested in Porter's 
 case, that this decision was correct ; for the testator made 
 his second Will, not merely because he thought it expe- 
 dient to do so under the circumstances in which he was 
 placed, but he intended it to have effect only " in case " of 
 his death. The condition that was to be fulfilled before 
 the Will could operate was the happening of his death 
 in India, and as this did not happen, the paper in 
 question was valueless, and probate was decreed of the 
 first one. 
 
 Condition an- yf^ umg^ qq^ confound a conditional WiU with a con- 
 
 nexed to a gut. . . . a,t-ii /-> 
 
 dition annexed to a gift m a WiU. On the latter subject 
 
 we will now offer a few remarks. 
 
 Although a testator is permitted to impose various con- 
 ditions upon gifts to those whom he makes the objects of 
 his bounty, yet the restrictions must not be such as to in- 
 volve in their observance a contravention of law, public 
 policy, or any act contra bonos mores, for such conditions 
 would be held utterly void (p). 
 Malum pro- Moreover, " if the condition annexed to a legacy be void 
 
 Moitmn and „.,. , j -i • t ■, 
 
 Malum in se. by reason 01 mvolving a maium proh%o%tum, the bequest 
 is absolute [that is, will take effect] ; but if the condition 
 involve a malum in se, the gift itself is void " (g). The 
 following is a case of a condition against public pohcy : — 
 A testatrix devised and bequeathed property to a married 
 woman, on such a condition as would, had it been per- 
 
 (o) Jdbscm V. Rosi; In the goods offence made so by positive law, 
 
 of Newton, 42 L. J. P. & M. 58. without reference to its moral cha- 
 
 ( p) Brown v. Peck, 1 Eden, 140 ; racter ; whereas malum in se is an 
 
 Poor v. Mial, 6 Madd. 32. act unlawful in its very nature, as 
 
 (q) Hayes & Jarman, 395, 7th ed. murder, theft, perjury, and the 
 
 By malum prohibitum is meant an like. 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 435 
 
 formed, have necessitated the devisee's separation from her 
 husband ; accordingly, the Court of Chancery declared the 
 condition null and void (r). The Vice-Chancellor Stuart, in 
 deciding this case, quoted the classification of conditions 
 made by Lord Chief Justice Parker, and M'hich may 
 profitably be reproduced here(s). "All the instances of 
 conditions," said his lordship, " against law in a proper 
 sense, are reducible under one of these three heads : first, 
 either to do something that is malum in se or malum 
 'prohibitum,. Secondly, to omit the doing of something 
 which is a duty. Thirdly, to encourage such crimes and 
 omissions. Such conditions as these, the law will always, 
 and without any regard to circumstances, defeat ; being 
 concerned to remove all temptations and inducements to 
 those crimes." The condition in Wilkinson v. Wilkinson 
 being one clearly comprised within at least the second of 
 the above-named classes, was expunged from the Will, and 
 the property was allowed to pass to the legatee. It will be 
 observed, on examination of the above case, that the gift 
 mentioned had vested by the terms of the Will, and the 
 question was, could those of the codicil devest it, the con- 
 dition named therein not being complied with ? No ; the 
 condition was of that class unfavourably known in the law 
 of England as subsequent, and was at the same time contra 
 bonos mores ; moreover, being too vague for the Court to Vague con- 
 construe, it was, as we have seen, held to be void. And 
 this brings us to the consideration of that distinction made 
 by our law between what are termed Conditions Pre- 
 cedent and Conditions Subsequent. 
 
 Now, a condition itself has been said to be a restraint Definition of 
 annexed to a thing, so that by the non-performance of it ^ °™ *"'"' 
 the party thereto shall receive prejudice and loss, and by 
 the performance, convenience and advantage (t) ; it has 
 
 (r) Wilkinson v. Wilkinson, L. E. (t) West. Symb. pt. 1, lib. 2, 
 
 12 Eq. 604 ; 40 L. J. Ch. 242. sect. 166 ; Termes de la Ley, Cowell's 
 
 (s\ Mitchell v. Mynolds, 1 P. Interp., both sub voc. 
 W. 189. 
 
 r E 2 
 
436 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Condition 
 precedent ; 
 
 Bubsequent. 
 
 The rules 
 applicable to 
 deTises are 
 not so as to 
 
 General rule. 
 
 Testator's 
 intention 
 
 also been described as " a kind of law or bridle annexed 
 to one's act, staying or suspending the same, and making ' 
 it uncertain whether it shall take effect or no " (u). If, 
 then, the restraint, &c., is to operate before the vesting, 
 accruing of the gift, right, liability, &c., it is a condition 
 precedent ; but if after such vesting, the gift is liable to 
 be defeated by the non-compliance with some proviso, 
 this forms a condition subsequent ; and while conditions 
 of the former class are, except in the cases enumerated, 
 upheld, the latter, under any circumstances, are always 
 unfavourably regarded by the Courts. 
 
 The Common Law of England, the rules of which 
 anciently governed devises of realty (a;), has always observed 
 the distinction between these two classes of conditions ; but 
 the Civil Law, upon which is mainly founded our own as to 
 bequests of personalty, entirely ignored it in the matter 
 of restraint upon marriage, establishing the legacies and 
 avoiding the conditions, whether precedent or subse- 
 quent {y). 
 
 At the same time, as our law marks with some nicety, 
 in Wills of personalty, the distinction between conditions 
 precedent and subsequent, let us proceed to examine its 
 salient features. 
 
 It is a general rule, then, that where the condition 
 annexed to a legacy is precedent, and one that the law 
 can uphold, such legacy will not vest until the condition 
 is performed ; that is, if the terms of the bequest show 
 such an intention on the part of the testator. Accord- 
 ingly, where a testatrix bequeathed to her son a certain 
 sum per annum, provided he gave up low company, the 
 condition was held to be intended to precede the vesting 
 of the legacy — for intention must be taken into account 
 
 («) Shep. Touch. 117. 
 
 ip) Ha/rwood v. GoodrigM, Cowp. 
 90 (1791) ; Judgt of Lord Mans- 
 iield. See also Co. Litt. 206 a. 
 
 b. 217 a. 
 
 {y) 1 Rop. Leg. 758 ; Lord Haid- 
 wicke's judgment in Reyrmh v. 
 Martin, 3 Atk. 332. 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 437 
 
 in deciding whether a condition be precedent or subse- makes condi- 
 quent — and being also considered a reasonable one, was m^ti^sequmt. 
 upheld by Sir W. Grant, M.R. (z). 
 
 It matters not how unreasonable the condition prece- Condition may 
 dent may be, provided it is not impossible in itself, abirbu^no't 
 illegal, or contra bonos mores, and can be performed by impossible, 
 
 il.l6£r3il or 
 
 the person upon whom that duty is cast (a) ; it must be against public 
 at least substantially fulfilled before the gift can vest ; for P^'^^y- 
 the maxim is cujus est dare ejus est d/isponere, and equity 
 cannot relieve agaiast it (&). 
 
 It is seen that, if a legacy be given only on the fulfil- Impossible 
 ment of a condition which is impossible in its very ^isregaxded. 
 nature, the gift will be discharged from the condition 
 imposed, whether it be precedent or subsequent. This 
 was the general rule of the Civil Law concerning legacies, 
 but to it there are these three exceptions (c) : — 
 
 (1.) Where the fulfilment of the condition is the sole Exceptions to 
 motive of the gift ; as where A. leaves B. £1000 impoSb?e 
 on condition that he marries C, and C, unknown conditions, 
 to A., is dead ; if it does not appear clearly that 
 the gift was to vest under any other circum- 
 stances, B. will not secure the legacy, for the 
 marrying C. must be held to be the sole motive 
 of the gift. 
 (2.) Where the impossibility was not known to the 
 testator when he imposed the condition, which 
 may be illustrated by the same case as the first 
 exception. 
 (3.) Where the condition, originally possible, has be- 
 come impossible by the act of God ; as where 
 A. leaves B. £1000 on condition that he marries 
 C, who dies after the testator, and before the 
 
 {z) Tattersall v. Howell, 2 ,Mer. (5) Bertie v. Falkland, 2 Vern. 
 
 26. See also post, 445. 338. 
 
 (a) Seott V. Tyler ; see the argu- (c) 1 Rop. Leg. 755 ; Hayes & 
 
 ment of Mr. Hargreave in that Jarmau on "Wills, 404, 8th ed. 
 
 case, 2 L. C. Eq. 172 et seq. 395, 7th ed. ' 
 
438 
 
 WILLS OF PERSONAL PROPERTY. 
 
 When acts 
 required to 
 be done have 
 been done 
 unknown to 
 testator. 
 
 Uncertainty of 
 contingent 
 event happen- 
 ing at all. 
 
 Conditions 
 subsequent. 
 
 Tested 
 
 interests 
 
 upheld. 
 
 Equity will 
 relieve against 
 conditions 
 subsequent, 
 
 marriage can be performed. In such a case B. 
 would lose the legacy (d). 
 
 " Under the head of impossible conditions, those may 
 be classed, where testators, through ignorance, have re- 
 quired acts to be done, that have been performed, or 
 events to happen, which have taken place. In those in- 
 stances, as the conditions are impossible, the legatees take 
 their legacies pure and unqualified " (e). 
 
 " In like manner, if the impossibility of the condition 
 arise from the subsequent act of the testator, the legacy 
 will be single and absolute " (/). 
 
 It is also to be observed that " when the event, upon 
 which a legacy is directed to be paid, is uncertain as to 
 its ever taking place, the legacy will not vest previously 
 to the happening of the event .... for the taking place 
 of the event is a condition precedent to the vesting of the 
 legacy, according to the maxim dies incertus in testamento 
 conditionem facit (g), one which, however, must yield to 
 the intention of testators. 
 
 Now as regards conditions subsequent, we have seen 
 that before they can operate, the estate or gift with which 
 they are connected must previously vest, so that their 
 actual effect is, if unperformed, to devest a gift already 
 vested. Consequently, our law, which leans to vested 
 interests, does not favour these restrictions, and our Courts 
 of Justice always construe them with rigid strictness, 
 never permitting an absolute gift to be defeated unless it 
 be perfectly clear that the exact case has happened to 
 cause the interest or devesting to arise Qi). So jealously 
 does Equity regard the defeat of a vested interest, that, 
 while it will not assist in the violation of a proper condi- 
 tion precedent, yet will readily lend its aid to prevent a 
 
 (S) 1 Eop. Leg. 755. As to 
 where a testator himself caused the 
 condition imposed by him impos- 
 sible of fulfilment, see Tales v. 
 University GoUege, London, L, E. 
 8 Ch. 454; 42 L. J. Oh. 666; 
 affirmed in H. L. 45 L. J. Ch. 137. 
 
 (e) 1 Eop. Leg. 755 ; Swint. pt. 4, 
 sect. 14. 
 
 (/) Ibid. ; DarUy v. Lang- 
 worthy, 3 Bro. P. C. 359, 8vo. ed. 
 
 (g) 1 Eop. 563. 
 
 (ft) 5 Ves. 209. 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 439 
 
 condition subsequent (which if illegal or impossible is thouglinot j 
 absolutely void), from devesting an estate or gift already ^^dent."^'' 
 vested (i). But this relief wiU not be given where there " Gift over" 
 is what is called a " gift over," that is, to another person if ^ondiS ^ 
 the condition be not complied with, for that would be subsequent to 
 taking from the legatee over the gift which, by the testa- i^nless it be 
 tor's express direction, had vested in him (k). Here are impossible or 
 two cases in point : — A. by his Will bequeathed £3000 
 to his daughter B. at twenty-one or marriage, provided if 
 she married without the consent of C. her legacy was to 
 cease, and at the same time making his son D. his executor 
 and residuary legatee. B. married without C.'s consent, 
 but the Court of Chancery gave her the £3000 with in- 
 terest from marriage, for there was no bequest over, and 
 the gift was absolute at twenty-one (Z). The following is a 
 case of a gift over : — A. bequeathed to his daughter B. 
 a legacy, but if she married without her mother's consent, 
 then a part of the legacy was to go to her brother. The 
 daughter married without her mother's consent, and the 
 Court of Chancery decreed that the part of the legacy 
 must be given up. " This," said the Court, " is not to be 
 as a clause in terrorem only, but the sum upon her 
 marrying is well devised over, and an interest vested 
 in the brother " (m). It is thus seen that where there 
 is no bequest over, the Court will assist in defeating 
 the operation of a condition subsequent, but where 
 there is a bequest over, and the condition is legal and 
 possible, for the equitable reason above stated, it will not 
 relieve. 
 
 It was once a matter of doubt as to whether a residuary Kesiduary 
 bequest is a gift over, but it has long been settled not to gift^Ter"" 
 be such ; although a direction that if a legatee do not per- ^^f'™) ^ t° » 
 
 (i) Sto. 1319. gifts are absolute. 
 
 (;fc) Of course the statement in the (l) Garret v. Pritty, 2 Vern. 
 
 text applies only to conditions sub- 293. 
 
 sec[uent tbat are legal and possible ; (m) Stratton t. Orymes, 2 Tern. 
 
 if they are otherwise, the gift over 367. 
 is not considered at all, but the 
 
WILLS OF PERSONAL PEOPEETY. 
 
 falling into 
 residue. 
 
 Condition 
 in Urrorem. 
 
 Void in the 
 Civil Law. 
 
 Condition not 
 to dispute the 
 validity of a 
 WiU. 
 
 Conditional 
 limitation. 
 
 form the condition annexed to a legacy, it shall fall into 
 the residue (n), does amount to a gift over (o). 
 
 We have spoken of a condition in terrorem; and by 
 this expression is meant one introduced into a Will merely 
 to so influence a legatee by fear as to deter him from doing 
 something, and such a condition will, in general, not have 
 any operation beyond producing the effect in question. 
 The term would be applicable in a case where there is a 
 condition subsequent attached to a legacy, but without a 
 gift over in case of non-compliance therewith, for the con- 
 dition in such case would be merely in terrorem. 
 
 By the Civil Law, such a condition was absolutely void; 
 a circumstance which shows that while our law as to Wills 
 of personalty is mainly founded on that system, yet we do 
 not in all cases adopt its rules (p). 
 
 A condition not to dispute the validity of a Will is 
 generally i/n terrorem, and therefore, if there exist proba- 
 bilis causa litigandi, the non-observance of the condition 
 will not work a forfeiture (g), for the Courts would con- 
 strue " litigation " to mean " vexatious litigation " (r). 
 
 If, however, there is a bequest over to another person, 
 consequent upon the legatee disputing the Will, then the 
 condition is not in terrorem, but is a conditional limita- 
 tion, an interest quousque, that is, until he violate the 
 condition by entering into litigation (s). As the name 
 implies, a conditional limitation is a species of limitation 
 partaking of the nature of a condition, as where a condi- 
 tion subsequent be followed by a limitation over to a third 
 person a stranger, in case of non-fulfilment or breach ; 
 and a limitation, as distinguished from a condition, has 
 been stated to be " the bound or compass of an estate, or 
 the time how long an estate shall continue " (t). What 
 
 (m) By residue is meant the sur- 
 plus of a testator's estate after the 
 debts and legacies have heen paid. 
 2 Black. Com. 514. 
 
 (o) Wheeler v. BingJiam, 3 Atk. 
 367. Per Lord Hardwicke. 
 
 (p) ffaroeyv. Aston, 1 Atk. 363 ; 
 and read the remarks of Lord Eldon 
 
 in Clarke v. Parker, 1 9 Ves. 13. 
 
 {q) 1 Kop. Leg. 795 ; Lloyd v. 
 Spillet, 3 P. "W. 344. 
 
 (r) Ingram v. Strong, 2 Phill. 
 315 ; Powell v. Morgan,2 Vem. 90. 
 
 (s) 1 Bop. 6S5. 
 
 (t) 1 Shep. Touch, by Preston, 
 117. 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 441 
 
 makes a remainder in real estate may be stated to make a ( 
 conditional limitation in personalty. 
 
 It is important to observe that the limitation over from aift over in 
 one legatee to another, in case of the former disputing the ^°^t*^e ^ ^ 
 Will, must be to a stranger, and not to executors, &c. ; stranger, not 
 otherwise it will be merely equivalent to a condition in ^^ ' 
 
 terrorem, as the limitation over, except to a stranger, 
 accomplishes no more than the law would do without the 
 express disposition (u). In the old case, cited below, the 
 Lord Chancellor said, "Where there is a devise over to a 
 third person, after a forfeiture by the first, a forfeiture in 
 such a case would be generally binding ; but here 'tis 
 said it shall go to the executors, which was not to be con- 
 sidered, because it is no more than what the law implied," 
 and consequently the condition in the case was ineffectual. 
 
 We thus s'ee the importance of a Request over, where 
 it is wished that conditions subsequent shall operate ; for 
 although these are in the nature of a penalty, yet the i 
 
 intent should be clear and plain by 'express gift over to ' 
 
 devest it j^but in case of a condition precedent, it would 
 be giving an estate against the intent of the donor to dis- ' 
 
 pense with the condition («). 
 
 Of the conditions introduced into Wills, those that have Conditions in 
 
 J. , ■ r J. 1 r _L restraint of 
 
 reierence to marriage are oi extremely frequent occurrence, marriage. 
 
 By the ancient rule of the Civil Law, afterwards modified, 
 
 any conditions whatever which interfered with the liberty 
 
 of marriage were utterly void ; and, for some time, such 
 
 was the law observed in England. The adoption, however, 
 
 of the strict rule in question was not really in accordance 
 
 with the spirit of our law ; for we find, long before^the time 
 
 when Courts here observed it, a writer of authority stating 
 
 that, " if the conditions are only such, whereby a marriage 
 
 is not altogether prohibited, but only in part restrained, 
 
 as in respect of time, place, or person, then such condi- 
 
 (m) 1 Rop. 796 ; Cage v. RusseU, as to asHng consent. As to a gift 
 
 2 "Vent. 352. over on death "without issue," see 
 
 (x) See the Judgt. of Lee, C. J.,^ Olwomt v. Wright, L. R. 1 Ch. Div. 
 
 in Eamy..v. Aston, 1 Atk. 377. QS. S.) 346 ; 45 L. J. Oh. App. 1. 
 Also, Old'' Parher, 19 Ves. 13, 
 
442 
 
 WILLS OP PERSONAL PEOPBRTY. 
 
 Greneral 
 
 and particular 
 
 restraint 
 
 distiHguished. 
 
 Three excep- 
 tions to rule 
 as to bequest 
 over being 
 
 tions are not utterly rejected " {y). In other words, the 
 correct rule of law was and is, that while general re- 
 straints upon marriage are illegal and void, those of a 
 particular character are valid and binding ; and by a 
 particular restraint is meant one of a partial and reason- 
 able character. Accordingly, if a bequest be made to A. 
 upon his man-iage under twenty-one, or other reasonable 
 period, with consent of parents, trustees, executors, or 
 guardians, the consent must be given before marriage, 
 and will not avail afterwards to vest the legacy ; for the 
 condition is precedent and legal, and must be fulfilled 
 before the legacy can vest (z). It is the same too whether 
 there is a bequest over or not, if the condition is precer 
 dent (a), but where the condition to ask consent to mar- 
 riage is subsequent, it will be considered merely in 
 terrorem, unless there be a bequest over in case of non- 
 compliance with the condition in question (b). The true 
 ground of this rule " is not the intention, but the right of 
 a third person, the legacy being given over, and vesting 
 in that person, if the condition be not performed." 
 
 A residuary bequest, we repeat, is not considered one 
 given over, unless the Will state expressly that the for- 
 feited legacy shall fall into residue (c). 
 
 But there are three cases which form exceptions to the 
 rule just mentioned, that a bequest over must accoihpany 
 a valid condition subsequent to ask consent to a marriage, 
 and, in these, legatees must comply with the conditions 
 expressed by the testator, even though there be no bequest 
 over in default, as they are then not considered to be 
 merely in terrorem. These exceptions are as follows : — 
 
 (1.) Where an alternative legacy is given ; that is to 
 say, one given in the event of a legatee not marry- 
 
 {y) Godolph. Orp. Leg. pt. 1, see also Garlet v. Hilton, 1 Atk. 
 
 c. 15, s. 1 ; and see 2 Dick. 721. 
 (s) 1 Eop. Leg. 769, 762. 
 
 (a) Hemmings v. Mimckley, 1 
 Bro. 0. C. 304 ; StacJepole v. Beau- 
 mont, 3 Ves.,89. 
 
 (b) Gla/rke v. Parker, 19 Ves. 14 ; 
 
 381 ; Per Lord Hardwicke, in 
 Wheeler v. Bingham, 3 Atk. 367. 
 
 (c) Scott T. Tyler, 2 L. C. Eq. 
 217 ; 2 Bro. C. C. 488 ; Lloyd v. 
 Bramton, 3 Mer. 108, 118. 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 443 
 
 ing with consent ; as, where A. gave B. an annuity 
 of £10 for life, and by a codicil to his Will de- 
 clared that, " if she married with the good liking 
 of his trustees, then she should have ^150 in 
 lieu of the annuity, which was to cease." B. 
 married without the required consent, and was 
 held to have forfeited her legacy (d). Here, 
 there was no bequest over ; but, an alternative 
 legacy being given, the condition, which was 
 precedent, was allowed to operate. 
 (2.) When marriage with consent is only one of severa,l 
 events, on the happening of which the legatee 
 will be entitled to his legacy, as on attaining a 
 particular age unmarried, or marrying with con- 
 sent before such age, which shall first happen, si 
 (3.) Where the conditions requiring consent to mar- 
 riage are confined to marriage during the lega- 
 tee's minority or other reasonable age (e). 
 " There is some doubt," say the learned editors of the 
 Leading Cases in Equity, "with regard to a personal 
 legacy, whether a condition precedent requiring consent 
 generally, without reference to the age of the legatee, is 
 valid, unless it be accompanied by a bequest over on mar- 
 riage without consent, in which case it is clearly valid " 
 (Vol. 2, 214). They then cite the case mentioned below, 
 and which was as follows (/) : — 
 
 A bequest was made to trustees in trust, to pay, assign, 
 and transfer " unto and between the children of A. B.," 
 when and as they should respectively attain the age of 
 twenty -one, or be married with the lawful consent of 
 parents or guardians. A child married without consent, 
 and died under twenty-one. Held, that her representa- 
 tives took no share of the property. The Master of the 
 Kolls said that this was not a condition of forfeiture, but a 
 
 {d) GilUt T. Wray, 1 P. W. 284 ; 8tli ed. 365. 
 
 see also Beynish v. Martin, 3 Atk. (/) Qardimr v. Slater, 25 Beav. 
 
 330. 509. 
 
 (e) Hayes & Jarman on Wills, 
 
444 WILLS OF PERSONAL EEOPEETY. 
 
 gift to persons on the happening of one of two events, 
 viz., to marry with consent or attain the age of twenty- 
 one before their interests became absolute. It is seen 
 that, in this case, there was no bequest over, and yet there 
 was a virtual forfeiture ; so that it is conceived that the 
 doctrine before enunciated is a sound one, that when the 
 condition is precedent, as in requiring the consent of A. 
 to B.'s marriage, B. must obtain the consent, whether the 
 legacy be limited over or not (g). 
 Doctrine of There is a doctrine in our law known as that of cyprh, 
 
 and is that of construing written instruments as near to 
 the intention of the parties to them as possible (h). It is 
 most commonly applied to the construction of devises ; and 
 the celebrated conveyancer, whose name appears below, 
 tells us that the doctrine of cy pres is not admissible in 
 deeds, or even as to personal estates in Wills (i). It has, 
 however, been employed in the construction of charitable 
 bequests (j) under certain circumstances {k) ; and if the 
 very doctrine itself is not, as Preston says, permitted to 
 aid in the execution of bequests of personalty generally, 
 yet in some cases, where conditions precedent or subse- 
 quent are imported into them, something at least analogous 
 to cy prls. is allowed to govern their construction. 
 
 For instance, by the rule of the Civil Law, which we 
 have imported into our own, precedent conditions requiring 
 marriages with consent, with some others also, when- 
 
 {g) 1 Eop. Leg. 776. legacy will fail vrith tie void demise, 
 (A) 2Shep.Toucli. by Preston, 237. and the doctrine of cy prh is not 
 (i) Ibid. applicable in such a case. Oreen v. 
 (j) Berne v. The Attorney-Gen., Britten, i2 L. J. Ch. 187. 
 3 Hare, 191 ; In re Clary s Trusts, (Tc) 1 Pow. Dev. 367, 3rd ed. n. 
 L. E. 1 Ch. Div. (K S.), 497 ; 45 See Tlie Attorney-Gen. v. The Iron- 
 la. J. Ch. 194, where the doctrine mongers' Compamy, 10 CI. & P. 908, 
 oi cypres was held not applicable. 10 L. J. Ch. 201 ; 2 Bear. 313; 
 A devise of realty for charitable In re Maguire's Tnist, L. E. 9 Eq. 
 purposes is void by Stat. 9 G. 2, 632 ; 39 L. J. Ch. 710 ; In re 
 0. 36, and realty includes money Kilvert's Trusts, L. R 12 Eq. 183 ; 
 to be laid out in the purchase 40 L. J. Ch. 703. Where the doc- 
 of such property (see ante, p. 48). trine in such cases has been held 
 Further, if a charitable legacy be inapplicable, see Fisk v. The Attor- 
 coupled with a void devise, such ney-Gen., L. E. i Eq. 521. 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 445 
 
 ever they cannot be executed according to the very letter, 
 will be considered as sufficiently performed to entitle the 
 legatee to his legacy, if such conditions be executed cyprh, 
 that is, be substantially complied with. To subsequent 
 conditions of this kind, or those which are to devest a 
 legacy, and give it over, this doctrine would d fortiori be 
 applied ; indeed, if these cannot be performed literally, 
 that is, in each and every particular, the condition becomes 
 void, and the interest of the legatee absolute (1). 
 
 " It is a rule long established that where there is a gift inconsistent 
 with a condition inconsistent with and repugnant to such ^ncuSf™* 
 gift, the condition is wholly void " (m). Of this class of 
 conditions are those restraining every after disposition of 
 the property given ; as a condition that an absolute legacy 
 shall not be spent, which is obviously inconsistent with 
 the full enjoyment thereof; and, generally, whenever the 
 property in the gift and the qualifications and restraints 
 attempted to be annexed to it, are incompatible with that 
 full enjoyment thereof which the law allows ; then such 
 conditions are repugnant, and the non-observance of them 
 will not work a forfeiture. The foundation of the rule Foundation of 
 being thus indicated, viz., the inconsistency between the "^"l^- 
 gift and the conditions, it naturally follows that if the be- 
 quest and the restraint are quite compatible with each 
 other, the condition is good ; as for example, a bequest to 
 A., either absolutely or for life ; but if he dispose of his 
 interest to B., then the property to go to C. Here, the 
 condition is valid, for it is not a general restraint upon 
 A.'s power of alienation, but is merely partial, and may 
 be equitable and proper {n). Sometimes, in these cases, a 
 prohibition is construed as a limitation, but " whether the 
 restriction be condition or limitation, must be decided by 
 the intention of a testator, as collected from his Will " (o). 
 
 To summarize what has been stated as to conditions Summary. 
 
 (I) 1 Sto. Eq. Jut. § 291 ; 2 Id. L. C. in Conveyancing— Index. 
 
 386, 390 ; 1 Eop. Leg. 619, 802 ; hut (m) Bradley v. Peixoto, 3 Ves. 
 
 read Bawsonv. Olwer-Massey, L.U. Z2i. Per Lord Alvanley. 
 
 1 Ch. Div, (N.S.), 410, 45 L. J. Ch. (n) 1 Hop. 787. 
 
 519, reversing a decision of the (o) Id. Ibid. 
 Master of tlie Bolls. See also Tudor's 
 
446 WILLS OF- PERSONAL PROPERTY. 
 
 subsequent, we may say that, if they are impossible, 
 illegal, contra bonos mores, utterly inconsistent with, and 
 repugnant to, the terms of the gift, and the interests of the 
 legatee, they are absolutely null and void, and this is so 
 notwithstanding there being a bequest over(^). But 
 where the conditions are in accordance with the law, or 
 the restraints imposed are only partial, or when the pro- 
 hibitions may fairly be construed as conditional limita- 
 tions, or limitations, then they must be performed, or the 
 bequest will go over, as directed by the Will. And with 
 respect to conditions subsequent, to ask consent to mar- 
 riage, if their terms cannot wholly be complied with, the 
 bequest is absolute and goes to the legatee (q). 
 
 Conditions subsequent, then, attached to a gift of any 
 kind of property, intended to, or which probably may, 
 operate in total restraint of marriage, are void — except 
 in the case of a widow or widower (r) — though as to a man 
 this was once doubted — where the gift would go over 
 on her second marriage (r) ; yet those imposing special 
 Scott V. Tyler .• limitatiotis or restraints are perfectly legal and effec- 
 judgment. tive (r). Lord Thurlow, in the case mentioned below (r), 
 enumerates a variety of conditions as to marriage which 
 may be imposed on a legatee, and which he must per- 
 form in order to secure his legacy. His lordship says : — 
 " An injimction to ask consent is lawful, as not restraining 
 marriage generally ; a condition that a widow shall not 
 marry is not unlawful ; an annuity during widowhood ; a 
 condition to marry or not to marry A. B. is good ; a con- 
 dition prescribing due ceremonies, and place of marriage, 
 is good ; still more is a condition good, which only limits 
 the time to twenty-one, or any other reasonable age, pro- 
 vided it be not used evasively to restrain marriage gene- 
 rally." In this, however, his lordship merely enunciated 
 
 (p) Poor V. Mial, 6 Mad. 32. coupled with a condition, that in 
 
 ' (q) See 1 Eop. 802. the event of of his second marriage, 
 
 (r) Scott V. Tyler, 2 L. C. Eq. the gift is to go over, the condition 
 
 178, and notes ; Newton v. Mars- is now valid. Allen v. Jackson, 
 
 den, 2 J. & H. 356 ; 31 L. J. Ch. 45 L. J. Ch. App. 310, reversing a 
 
 690 ; Charlton v. Coombes, 4 Gift. decision of V.-C. Hall, 336. 
 382. If a gift is made to a vMowcr, 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 447 
 
 the old rule of law, -which, as we have seen, had been 
 stated long before by Godolphin, and which has since 
 been followed. 
 
 It is said by a learned writer that the Common Law of Difference 
 
 T-i n 1 . 1, . , • T •, ,• • between a 
 
 -Cingland, m allowing certam limitations upon marriage, condition and 
 discovered no more favour to restraints thereon than did * limitation. 
 the Civil Law, and that both systems allowed a limitation 
 to qualify a gift, but rejected a condition (s). This brings 
 us to notice more particularly the important and very old 
 distinction which our law observes between the sets of 
 circumstances indicated respectively by these two terms (t), 
 and which may be well illustrated by the following modern 
 case : — 
 
 A Will, made in 1842, after directing payment by trustees illustrative 
 of an annuity of £100 per annum to one M. B. for her life, "^^^ 
 contained the following further declaration of trust : And if 
 Miss A. K., the niece of the said M. B., shall be living and 
 unmarried at the decease of the said M. B., do and shall, 
 as a further mark of my sense of the obligation Mrs. M. B. 
 has conferred upon me by her attention,' &c., pay to the 
 said A. K. the sum of £2 10s. per month during the term 
 of her natural life, if she shall so long remain sole and 
 unmarried ; the first payment thereof to be made at the 
 end of one month after the decease of the said M. B. 
 
 Testator died in 1843. A. K. survived M. B., and after- 
 wards, in 1848, married. The question was whether the 
 annuity had determined, and the Lords Justices Knight- 
 Bruce and Turner held the gift to be coupled with a 
 limitation, as distinguished from a condition, and there- 
 fore that the annuity ceased on the marriage of A. K., 
 for she was not intended to take unless she was un- 
 married at and after the death of M. B. (u). At 
 
 («) "Wilmot's Cases, 375. to ScoUy. Tyler, 2 L. C. Eq. 217. 
 
 (t) The following are aiathorities (u) Eeath v. Lewis, 3 De G. M. 
 
 on the difference between conditions & G. 954 ; 22 L. J. Ch.' 721. In 
 
 and limitations : — Fierce v. Jcmes, which Lord Justice Knight-Bruce 
 
 Vent. 322 ; 2 Bac. Ab. Condition. comments on the anomalous state 
 
 (H.) ; 2 Black. Comm. 155 ; 2 of the law on the subject of these 
 
 Woodd. Vin. Leot. 143. The notes limitations concerning marriage. 
 
448 
 
 WILLS OP PERSONAL PEOPEETY, 
 
 Limitation 
 defined. 
 
 Different 
 words required 
 for condition 
 and limitation 
 respectively. 
 
 Condition is a 
 
 datum, 
 whereas a 
 limitation is 
 1/ucrwm 
 cessans. 
 
 first sight, it would appear as though this bequest had 
 beeix encumbered with a condition subsequent in total 
 restraint of marriage, which would have been vn ter- 
 rorem and nugatory without a bequest over ; but, on 
 closer examination, we shall find this is not so ; for 
 the gift is analogous to one until marriage, and when the 
 party marries, then either to go over or to cease, which 
 is a valid limitation, and in the case of a widow always 
 has been so (u). A legacy, then, given as above, is not 
 really fetiliered by any condition (w), but merely modified 
 by a limitation, " which is, as we have said before, the . 
 bound or compass of an estate, or the time how long an 
 estate shall continue " (w). 
 
 Moreover, different words are required for the creation 
 of a condition and a limitation respectively. The use of 
 the following words in a Will or-deed make a condition : — 
 Upon condition ; provided always ; so that ; that if it 
 happen ; and the following words if used in a Will, will 
 create a condition, though not if they occurred in a 
 deed : — that he shall do ; on his doing ; with that in- 
 tention ; to the effect ; for the purpose. Proper words of 
 limitation are : while ; so long as ; until ; provided that ; 
 so that ; as long as ; wheresoever ; as far as ; up to ; 
 so long (x). We thus see that, while cuits generally form 
 the essence of a condition, time generally forms that of a 
 limitation ; and the exact difference between these terms 
 is well expressed by saying that the former is damnwm, 
 datum, whereas the latter is merely lucrum, cessans. If 
 this distinction be applied to the facts in Heath v. Lewis, 
 for instance, and other cases of a like nature, it will readily 
 be perceived that the Lords Justices were right in holding 
 
 (d) Cro. Eliz. 414. 
 
 (w) 1 Shep. Toucli. by Preston, 
 
 117. 
 
 (a;) " There is a whole category of 
 cases from very early times down to 
 a very recent decision of the Master 
 of the Kolls, in which the words 
 'if,' 'when,' and 'so soon as' have 
 heen held from the context not really 
 
 to import contingency in the sense 
 of a condition precedent or subse- 
 quent to the vesting, hut to mean a 
 proviso or condition subsec[uent, 
 operating as a defeasance of an estate 
 vested. ..." Andrew v. Andrew 
 on Appeal, L. R. 1 Ch. Dlv. App. 
 (N. S.), 410; 45 L. J. Ch. 232, 
 Judgt. of L. J. James. 
 
ON MUTUAL OR CONJOIJiTT WILLS, ETC. 449 
 
 the bequest to be limited, but not conditioned, for it was 
 only to cease on marriage, and was not qualified by any 
 special proviso ^s to her marrying or not marrying. It 
 may be said, however, that the legatee was held in ter- 
 rorem by knowing that if she married, her annuity would 
 thereupon cease; but if this were so, she was free to incur 
 the result, and the intention of the testator, which is 
 all-powerful in these, as in other testamentary cases, was 
 simply that she should, if she desire to enjoy the annuity, 
 remain unmarried as long as she did so. His object was 
 clearly not to impose any prudential or other restraint on 
 the legatee, which, had such been the case, would probably 
 have amounted to a condition ; the legatee was to have 
 her legacy, not upon a contingency, but until a particular 
 time ; nothing was required to precede the vesting of the 
 legacy ; nothing was to happen after the vesting ; the 
 testator's intention was, as gathered from the whole Will, 
 that the legatee was to enjoy something until, but not 
 after, marriage, without any proviso or gift over. It was, 
 therefore, not a condition, nor a conditional limitation, for 
 the interest was not given over, but it was a pure limita- 
 tion, and the legatee's interest in the bequest therefore 
 determined when she married, although after the life- 
 time of M. B. (z). 
 
 A noticeable and important distinction between condi- Important 
 tions and limitations is this, that whereas the former are tetweenTOu- 
 required when legal, &c., to be strictly performed, limita- ditions and 
 
 . ,1 T , ,, n. . Hmitations. 
 
 tions are construed according to the sense and intention 
 of testators, and it is not necessary that every particular 
 circumstance connected with them should take place. 
 
 What is or is not a condition precedent or subsequent in Intention 
 a Will, depends not so much on merely technical words as on ^oa precedent 
 the plain intention of the testator, to be deduced from the or subsequent, 
 whole instrument (a). " Hence, although the expressions 
 
 (z) As to conditional limitations, Cas. 337 ; and see the remarks of 
 
 see 1 Eop. Leg. 789, 795 ; 2 Wms. Lord Kenyon, in Porter v. Shep- 
 
 Exors. pt. 3, bk. 3, ch. 2, § 6, 1269. herd, 6 T. R. 668. (Contract.) 
 
 (a) Eoberts v. Brett, 11 H. L. 
 
450 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 The above 
 doctrine ap- 
 plicable to 
 realty and 
 personalty. 
 
 Executory 
 devise or 
 bequest. 
 
 used by him may appear to denote its dependence on a 
 contingency, which may not happen, still, if the context of 
 the Will clearly show his intention, that the event de- 
 scribed was not to precede the vesting of the legacy, but 
 the legatee should have it at a particular time, whether 
 the contingency happened or not, the form in which the 
 bequest is made, will not be permitted to create a prece- 
 dent condition ; for in these and similar cases, Courts of 
 Justice, in favour of the intention, consider the executory 
 devises or bequests as limitations and not as conditions, 
 which are required to be literally performed, previous to 
 the vesting of any interest . . . ." (b). 
 
 " Hence have arisen those cases where a testator de- 
 vised to the child with which his wife was enceinte, and 
 if it died before twenty-one, then over(c) ; the limitation 
 over was held good, although the wife proved not to have 
 been eTiceinte, and there was no express devise upon that 
 event. The principle is obvious. The intention was 
 clear that the limitation over should take place, if, in any 
 event, the preceding was disappointed. The 'circum- 
 stance, therefore, of there happening to be no child en ventre 
 sa m&re, was not allowed to prevent the alternative be- 
 quest, which would have been the necessary consequence, 
 if the existence of the child en ventre sa mire had been 
 adjudged a condition precedent " (d). 
 
 The above principle, equally applicable to personalty as 
 well as realty, has been applied to other cases, both at 
 Law and Equity (cf), and whether the devise or bequest to 
 the unborn child be void, or only become ineffectual by 
 his not being born, the law is said to be the same (d). 
 
 The meaning of the term " executory devise '' or " exe- 
 
 (J) 1 Eop. ■ Leg. 750. An exe- 
 cutory devise or bequest is one of a 
 future interest not to take effect at 
 testator's death, but limited to arise 
 and vest on some future contin- 
 gency. More strictly speaking, 
 it is such a limitation of a future 
 estate or interest, as the law 
 
 admits in the case of a Will, 
 though contrary to the rules of 
 limitations in conveyances by Com- 
 mon Law. Feame, by Butler, 381, 
 386. 
 
 (c) Id. 648. 
 
 (d) 1 Ibid. 648. 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 451 
 
 cutory bequest " has, in its general sense, been stated ; 
 but it may be useful here to look into the matter a little 
 more fully. In its strict sense an executory devise is a 
 limitation by Will, and by Will alone — testamentary 
 documents being allowed greater latitude in their con- 
 struction than those intended to operate inter vivos — 
 of a future estate or interest in land, which cannot, con- 
 sistently with the rules of law, be a remainder (e), that 
 is, ''a remnant of an estate in lands or tenements, ex- 
 pectant on a particular estate, created together with the 
 same at one time" (/) Now, "in personal property, 
 under which both chattels real and personal are comprised, 
 there cannot be a remainder in the strict sense of that 
 word ; and therefore every future bequest of personal pro- 
 perty, whether it be preceded or not preceded by a prior 
 bequest, or limited on a certain or an uncertain event, is 
 an executory bequest." (g) By the common law, however, 
 although a chattel itself could not be limited to A. for 
 life and then over to B., yet the use of the chattel might 
 have been so limited ; " but the doctrine has gradually 
 obtained, and is now settled that, such limitations over in 
 a Will, or by way of trust are good (h)," and these are 
 what we term executory bequests (i). 
 
 The foregoing digression on the subject of conditions 
 precedent and subsequent — and which scarcely falls within 
 the scope of the precise intention of this work — it is hoped 
 will serve the reader better to understand what he will 
 find stated in some of the reported cases falling under his 
 observation, as to vested, conditional and contingent, and 
 other kinds of legacies. 
 
 To proceed : — A Will may be made by Intebroga- wm made by 
 TORIES ; that is to say, when a person, too ill to articulate answer." ^""^ 
 
 (e) 2 Pow. on Dev. by Jarman, Eq. 1. 
 
 237. (h) Feame, ut supra. 
 
 (/) Co. Litt. 143 a. (i) Hor the further learning on 
 
 (g) Feame Cont. Rem. 402 n., by this subject see Fearne Cont. Rem. 
 
 Butler. As to executory trusts, see and Chap. I. on Executory Devises; 
 
 Lm'd Glenorchy v. BosviUe, 1 L. C. also 8 Vin. Abr. 104, pi. 2. 
 
 G G 2 
 
452 WILLS OF PERSONAL PROPERTY. 
 
 without paiu or difficulty, being at the point of death, and 
 wishes to dispose of his property, questions may be put to 
 him, the answer to which, with such interrogatories, may 
 form his valid Will. There appear to be very few reported 
 cases on the present subject, but the one cited below (]c) 
 will illustrate our definition of a Will made by interro- 
 gation. 
 lUustratiTe One T. G. having been suddenly taken ill, sent for Mr. 
 
 *^®" E., his solicitor, to make his Will. The solicitor found 
 
 T. G. so unwell as to be scarcely able to speak, although 
 his mental faculties were unimpaired. Mr. E., after a 
 short interval, proposed, that in order to save the sick man 
 from unnecessary exertion, he should ask him some ques- 
 tions concerning what he wished as to the disposition of 
 his property. This was assented to, and four questions 
 were put to the testator, all of which he answered wholly in 
 favour of his wife, the questions and answers being put into 
 writing by the solicitor, each signed by two witnesses, and 
 the last by the solicitor also. The writing was propounded 
 as the Will of the deceased, whose next of kin opposed 
 the widow's claim, but Sir John NichoU pronounced for 
 the paper, and granted probate of it. In this case the 
 contention of the next of kin was, that the document 
 referred to was not of a testamentary character, but Sir 
 Form of paper John NichoU, admitting its defective form, upheld it, as 
 immaten . ^^^ ^^j^ being intelligible itself, but as being rendered 
 still more so, when explained by the circumstances under 
 Duty of the which it was made. "A Will," continued the learned 
 of'iateiTo-^^^ .pdge, " made by interrogatories, is valid ; but, undoubt- 
 gatory Wills, edly, wherever a Will is so made, the Court must be upon 
 its guard against importunity, more jealous of its capacity, 
 and more strict in requiring proof of spontaneity and 
 volition than it would be in an ordinary case. But if 
 Testator must there is clear capacity, if there is the animus testandi, 
 he of sound ^^^ j,£ |j^g intention is or may be reduced into writing, 
 mind ; free of the Court must pronounce for it. The testamentary act, 
 Md uBdue^ in this instance, originates entirely with the deceased ; it 
 influence. ^j,^ Gnen^r. Shipworth, 1 PhiUim. 53 (1809). 
 
ox MUTUAL XDR CONJOINT WILLS, ETC. 453 
 
 is proceeded in bj' question and answer, on account of the Gronnd of 
 extreme difficulty he experienced in the articulation of his ^ntereogatory 
 words, and not from any want of volition." Willa. 
 
 With regard to the case, of Qreen v. SJcipwarth, we Case cited only 
 should here observe, that it is useful only for the purpose ™rp"ose°of 
 with which we here cite it, namely, to show what a Will illustration, 
 made by question and answer amounts to. It will be ob- 
 served that the learned judge who decided it founded his 
 judgment on a circumstance which, since the passing of 
 the Wills Act 1838, has been unavailable to support an in- 
 formal testamentary paper as a valid Will. That circum- 
 stance was that the questions and the replies given to 
 them were at least equivalent to instructions for a more 
 formal Will, and so became admissible to probate. Now 
 in the General Report of the Commissioners appointed to Papers 
 inquii-e into the practice and jurisdiction of the old Eccle- probate before 
 siastical Courts in England and Wales [l), we find that ^*^8- 
 these tribunals — which had jurisdiction over probate 
 matters until January 1, 1838 — were accustomed to 
 admit all sorts of informal papers to proof They even 
 went so far as in some cases to uphold a document as a 
 Will in which appeared neither the signature of the tes- 
 tator nor that of witnesses, provided it might have been 
 inferred from the contents and appearance of the in- 
 strument that it was a complete act, done in the 
 lifetime of the deceased, and that it expressed his 
 final wishes as to the disposition of his personalty after 
 his death ! (m). But now, all this, as we have pre- instructions 
 viously seen, is altered, and we may here repeat that no ^^ * ^l'^ ^^^ 
 mere instructions for a Will are of any use whatever to unless 
 show a testator's intentions, and to prevent him dying ute^a^wm.^ 
 intestate, unless those instructions have been executed 
 and attested, just as the actual Will itself would have 
 to be. 
 
 By a Sham Will or codicil is here meant not one that Sham Will. 
 
 (1) Printed fertile House of Com- («i) See the General' Report of 
 mens in 1832. the Commissioners, p. 30. 
 
Sham Will. 
 
 4S4 WILLS OF PERSONAL PROPERTY. 
 
 is forged or fabricated witli a felonious intent (m), but one 
 duly made and executed by a testator, yet meant by him 
 to have no testamentary operation and effect. In other 
 words, a sham Will is one which, while " appearing to 
 be a record of a testamentary act, is in reality the off- 
 spring of a jest, or the result of a contrivance to effect 
 some collateral object, and never seriously intended as a 
 disposition of property " (o). 
 Case of a The case cited below — characterised by the eminent 
 
 judge who decided as remarkable in itself, and the ques- 
 tion arising out of it of supreme importance — is in point. 
 It appears a Mr. Smith made his Will in 1858, and in 
 July, 1860, added thereto a codicil. These papers were 
 propounded by the executors, and the persons entitled in 
 distribution having been cited, some of them appeared 
 and pleaded that, at the time of the execution of the 
 Will and codicil, testator was of unsound mind. The 
 pleadings were afterwards amended by adding a further 
 plea, to the effect that the writing of 1860 was not the 
 codicil of the deceased at all, and it was upon this new 
 answer that the whole case turned. 
 
 The case was tried by Sir J. P. Wilde, with a common 
 jury, and the following facts were deposed to. By the 
 Will of 1858, the deceased had divided his property 
 equally among his children, of whom a Mrs. Julia Mason 
 was one. A dispute, it seems, had arisen between the 
 family of the testator and that of his daughter's mother- 
 in-law, a Mrs. Marshall, as to some property occupied by 
 the latter, and this dispute the testator had been very 
 ■anxious to settle. With that view, he had an agreement 
 drawn up, which he wished Mrs. Marshall to sign, and to 
 frighten her into complying with his wishes, he gave 
 instructions for the codicil of 1860, by which, in terms he 
 purported to revoke his gift to his daughter, the daughter- 
 in-law of the unyielding Mrs. Marshall. But it appears 
 
 («) As to which see ante, p. 428. Smith, 3 Sw. & Tr. 283 ; 33 L. J. 
 (o) Per Sir P. Wilde in Lister v. P. & M. 29. 
 
ON MUTUAL OR CONJOINT WILLS, ETC. 
 
 455 
 
 Onys pro- 
 bandi. 
 
 from the evidence of the deceased's brother that, both at 
 the time of giving instructions for this paper to his 
 solicitor, and also at the time of executing it, he did not 
 really intend to deprive Mrs. Mason of her share of his pro- 
 perty, but that the sole object of the codicil was to induce 
 Mrs. Marshall to sign the before-mentioned agreement. 
 
 Sir J. P. Wilde, in summing up to the jury, thus con- Question for - 
 eluded his address : — " The simple question I put to you *® J™^- 
 is this : Are you satisfied or not upon the evidence you 
 have heard that this codicil was intended to be mere 
 waste paper, nothing but a sham ? The presumption is. Presumption 
 that it was intended to be an effective instrument, and ^" ^^^^^ "^^^^ 
 it is the duty of those who say it was not so intended to 
 make out that proposition very clearly." The jury found 
 that the testator never meant the codicil to have any 
 testamentary operation, whereupon the Court took time 
 to consider what decree it would pronounce upon the 
 verdict (^). 
 
 Shortly after this. Dr. Tristram appeared for the exe- 
 cutors, and asked the Court to decree probate of the Will 
 only. The learned counsel in the course of an elaborate 
 argument, for which he was thanked by the Court, having 
 stated all the known authorities with regard to these 
 sham Wills, Sir J. P. Wilde complied, though some- 
 what hesitatingly, with the request of the executors, and 
 granted probate of the Will only. His lordship, in re- 
 marking upon the danger of incautiously refusing pro- 
 bate to a duly executed paper, said : — " The momentous Remarks of 
 consequences of permitting parol evidence to outweigh Sir J. P. Wilde, 
 the sanction of a solemn act are obvious. It has a ten- 
 dency to place all Wills at the mercy of a parol story, that 
 the testator did not mean what he said. On the other 
 
 {p) The perverse or erroneous 
 verdict of a jury is not binding 
 on the Probate Division of the 
 High Court of Justice, any more 
 than that of a jury is binding 
 
 on a judge trying an action in a 
 Common Law Division, for the 
 verdict avails nothing unless judg- 
 ment be entered for the party in 
 whose favour it is given. 
 
456 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Evidence re- 
 quired to 
 prevent Court 
 
 duly executed 
 paper. 
 
 Duplicate 
 Wills. 
 
 hand, if the fact is plainly and conclusively made out that 
 the paper was in reality the offspring of a jest, or the 
 result of a contrivance to effect some collateral object, and 
 never intended seriously as a disposition of property, it is 
 not reasonable that the Court should turn it into an effec- 
 tive instrument ; and such, no doubt, is the law. There 
 must be the animUs testandi. . . . But the Court ought 
 not, I think, to permit the fact to be taken as established 
 
 unless the evidence is very cogent and conclusive 
 
 In this case the Court is satisfied, and therefore it pro- 
 nounces for the Will and against the codicil." 
 
 It is clear, then, that testators who make testamentary 
 papers simply with a view to further ulterior purposes, 
 run a great risk of having their sham Wills established, 
 and their real objects frustrated. The folly and absurdity 
 also of attempting such experiments is obvious, and in the 
 case just examined, it appeared as a matter of fact that 
 the testator's solicitor, after in vain pointing out the above 
 probability to the deceased, declined to have anything to 
 do with the execution of the codicil, which, fortunately, as 
 we have seen, was pronounced against, yet only on the 
 most cogent evidenge of its real object. 
 
 Lastljr, we may mention Duplicate Wills or codicils, 
 the nature of which is sufficiently indicated by their name. 
 Questions sometimes arise as to whether two similar 
 papers were intended by a testator to operate as distinct 
 documents, or whether they are merely duplicates of each 
 other. Such was the case in Hubbard v. Alexander (q), 
 in which it was contended that the Court could not 
 receive evidence of the testator's intention. V.-C. Bacon, 
 however, decided that the law was well -settled that he 
 could receive evidence for the purpose of ascertaining 
 whether the two instruments were intended to be separate 
 or duplicates, but not for any purposes of construction. 
 
 (s) 45 L. J. Ch. 740. 
 
CHAPTER X. 
 
 OF EXECUTORS AND ADMINISTRATORS. 
 
 In a previous portion of this book some reference has 
 been made to executors and administrators ; in the present 
 chapter it is proposed to place before the reader a slight 
 sketch on the law regarding persons in these positions. 
 The points noted will be those of practical importance, 
 and will be stated with as much conciseness as the subject 
 admits of, consistently with utility. 
 
 An EXECUTOR is he to whom the execution of the An executor. 
 directions contained in a Will of personal estate is, by the 
 testator's appointment in such Will, confided (a) ; and this is 
 the only way in which the office of executor can be created. 
 
 At the present day almost any person may be nominated Who may le 
 to, and hold the office of, executor, the general rule being 
 that whoever is capable of making a Will may be an 
 executor. " There are few or none who, by our law, are 
 disabled on account of their crimes from being executors ; 
 and therefore it has always been holden, that persons 
 attainted or outlawed may sue as executors, because they 
 sue in auter droit, and for the benefit of the persons 
 deceased" (&). 
 
 Of course, lunatics, idiots, and persons of weak intellect Who may not - 
 arising from any cause, or persons suffering from such 
 bodily infirmity as would incapacitate them from per- 
 forming the duties of the office, cannot be executors. 
 
 The following persons, whose position may be looked Persona in 
 upon as exceptional, may be appointed executors : positionTwho 
 
 may be such. 
 (a) 2 Blaokv Comm. 503 ; ante, (5) 1 Wms. Exors. Pt. 1, bk. 3, 
 pp. 69, 60. ch. 1, 235, 
 
458 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 The Sovereign. 
 
 Infants may be 
 nominated, but 
 cannot act 
 during their 
 minority. 
 
 Married 
 women. 
 
 Alien friends 
 and enemies. 
 
 Partnersbip 
 firms and 
 corporations. 
 
 A convicted 
 
 (1.) The Sovereign, who, however, in consideration of 
 the other important duties supposed to devolve 
 on the holder of that office, may, unlike any 
 other executor, delegate the performance of his 
 duties as such to other persons (c). 
 
 (2.) Aa infant, and even an unborn child, may be 
 nominated an executor, but they are not per- 
 mitted to act as sole executors until they attain 
 the age of twenty-one {d), before which time 
 administration cum testamento annexo is granted 
 to some other person, who is styled administrator 
 durante minore estate. If, however, there 
 should be two executors appointed, one of full 
 age and the other a minor, then such adminis- 
 tration is not granted, because the former can 
 execute the office (e). 
 
 (3.) A married woman may be appointed executrix of a 
 Will, but her husband's consent is necessaiy to 
 enable her to accept the office ; and, on the other 
 hand, he cannot compel her to accept it if she be 
 unwilling to do so (/). 
 
 (4.) An alien friend may act (g), and so may an alien 
 enemy, if he be a peaceful resident in this 
 country, or be here under the sanction of the 
 Royal license, or have come into the country 
 under a safe conduct (h). 
 
 (5.) A partnership firm (i) or a corporation sole (k), or 
 aggregate (Jc), may respectively be constituted 
 executors. 
 
 It appears to have been once thought that a person 
 
 (c) 3 Bao. Abr. Tit. Executor, 5. 
 
 (d) 38 G. 3, c. 87, s. 6. 
 
 (e) 1 Wms. Exors. Pt. 1, bk. 3, 
 oh. 1, 231. 
 
 (/) Id. 232, 234. 
 (g) 3 Bac. Abr. Tit. Executor, 6. 
 (h) 1 Bac. Abr. Tit. Alien, 5, 
 137. 
 (i) In the goods of Femie, 6 IT. C. 
 
 657. 
 
 (k) 3 Bac. Abr. Tit. Executor, 5. 
 A corporation sole is where it con- 
 sists of one person only, as the So- 
 vereign, a Bishop, or Dean ; it is 
 aggregate where it consists of seve- 
 ral persons, as that of the City of 
 London. 
 
OF EXECUTOHS AND ADMINISTEATOES. 459 
 
 convicted of treason or felony could not have probate felon may be 
 
 granted to him as executor of a Will ; but this question 
 
 was settled by Sir Gresswell Cresswell, in 1861, in the 
 
 case of STnethurst v. Tomlin & Bankes (I). The point Case 
 
 arose indirectly out of the celebrated Smethurst poisoning 
 
 case, the plaintiff being the person who was accused of 
 
 murdering Miss Isabella Bankes, of whose Will he sought 
 
 and obtained probate. After S. had propounded the Will 
 
 as executor, the defendants, who were the next of kin of 
 
 the deceased, having pleaded among other pleas that the 
 
 plaintiff had been convicted of felony, and sentenced to a 
 
 term of imprisonment, the plaintiff demurred to such plea, 
 
 and the Court allowed the demurrer. 
 
 Sir Cresswell, after remarking that the circumstance of WHether time 
 the plaintiff's term of imprisonment having expired ^ent^oTer'^' 
 before the date of the plea, was, in his opinion, immaterial, tefore asking 
 
 mi . • J J.1 1 for probate not 
 
 says : Ine questions argued upon the demurrer were, material. 
 whether a felon can be an executor, and whether, if he 
 may be, he can claim probate of the Will aftei" his convic- 
 tion ? " There is little to be found in the books upon this 
 subject. The authorities, however, clearly establish these 
 points : — First, that where a Will has been made, and an Will once 
 executor appointed, the Ordinary [now represented by the ™t'-'y'j ^o 
 Pjesident of the Probate Division and Admiralty Division probate, where 
 of the High Court of Justice] cannot exercise any discre- Itsentr 
 tion as to granting or refusing probate (m). If he refuses Ground for 
 probate it must be on the ground of some legal disability, ^[^''^u? ^ * 
 recognised and allowed by the Common Law, and not the executed. 
 Canon Law only. Secondly, that an executor who has 
 obtained probate, notwithstanding a conviction of felony, 
 and notwithstanding outlawry or attainder, may continue 
 to act as executor, and maintain actions, and exercise all 
 other rights of an executor. This shows that the office of 
 executor is not forfeited ; and if his testator were himself 
 an executor, he would represent him in that capacity. 
 
 (l) 2 Sw. & Tr. 143 ; 30 L. J. P. (m) That means, of course, in 
 
 & M. 269. the absence of fraud, &c. 
 
460 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Felon may act The Only question upon which doubt can be entertained 
 is, whether an executor, having been convicted of felony 
 
 even if felony- 
 committed 
 after testator's 
 death. 
 
 ajler the death of the testator, is in a condition to ask for 
 probate. I find no authority for saying that he shall not 
 be admitted to prove the Will." 
 
 The most cogent argument which appears to have 
 been advanced against the demurrer in the above case 
 was this : — ;How, said the counsel for the defendants, could 
 a felon, when undergoing imprisonment, perform the 
 duties of his office, pay debts, &c. To that question Sir 
 C. Cresswell replied, that "he might appoint an attorney," 
 that is an agent, to act for him ; but this obiter dictwn 
 of the very learned judge appears to be open to comment, 
 since it is an axiom of that branch of the law which 
 governs executors that " an executor, being a private 
 oflScer of trust named as such by a testator, and not 
 the law, he may refuse, but cannot assign the office, 
 although it seems that by a testator's direction he may 
 appoint a co-executor and trustee (n). Surely if an exe- 
 cutor were imprisoned, or undergoing a long sentence of 
 penal servitude, he ought not to be able to appoint an 
 
 («) See the curious case of Jach- 
 son V. Paulet, 2 Bob. Ecc. Eep. 
 ' 344, where a testator bequeathed 
 his estate iii trust to J. & G. , who 
 were nominated executors, with di- 
 rections — conjointly with the widow 
 — to appoint a third person as 
 trustee and executor. Sir H. J. 
 Fust decided that they might do so, 
 provided J. and 6. proved the Will 
 first. See also In the goods of Ry- 
 der, 2 Sw. & Tr. 127 ; 31 L. J. P. 
 & M. 215. Here A. H. R. in her 
 "Will said:— "I must beg S. P. C. 
 to appoint some one to see this my 
 "Will executed." S. P. C. filed iu 
 the Registry an appointment of him- 
 self as executor, and Sir C. Cresswell 
 granted probate to him as such. 
 
 An executor or administrator 
 may, however, mortgage or pledge 
 
 the property of his testator or iates- 
 tate, and give the purchaser a power 
 of sale of the property in case of de- 
 fault in payment of the mortgage 
 money. There can be in such a 
 case no violation of the maxim dele- 
 gatus non potest delegare, because an 
 executor or administrator being ab- 
 solute owner of the property which 
 comes to him, subject to the rules 
 against fraud and coUusion, he must 
 on grounds of public eonveuience be 
 in a position to make a good title to 
 the property he sells or mortgages. 
 See Bussell v. Plaice, 18 Beav. 21 ; 
 23 L. J. Ch. 441 ; approved by Lord 
 Hatherley, C, in £arl Vane v. 
 Bigden, L. B. 5 Ch. 663 ; 39 L. J. 
 Ch. 797 ; but especially read Oorser 
 Y. Oartwright, L. R. 7 H. L. 731,, 
 45 L. J.Ch. (H. L.)605. 
 
OV EXECUTOKS AND ADMINISTRATORS. 461 
 
 agent to act for him until the expiration of the term for 
 which he was sentenced, because the appointment would 
 amount to an assignment of his office, no matter whether 
 the period of such assignment might be a long one or 
 not, and it is not improbable that the agent might be 
 an extremely unfit person. In reply to Sir C. Cress- 
 well's observation, the case of Evans v. Tyler (o) was 
 cited, as showing the power of the Court to set aside 
 a person 'physically incapable of acting as executor ; and 
 it seems difficult to imagine a person less physically able 
 to discharge the active duties of an executor than a pri- 
 soner. It is true that in very many cases of executorships 
 there is a solicitor appointed to transact the business of 
 the office, but he does not perform the duties of the office, 
 for these cannot be assigned, and, of course, the signing 
 of cheques and so forth can only be done by the executors. 
 
 We have hithqi'to imagined the case of a sole executor ; One of several 
 but when there are several, and one is a felon under- feion. 
 going punishment, the rest would act in his absence. It 
 really seems, then, as a matter of common sense, that if 
 a sole executor should happen to be a prisoner under- 
 going his sentence at the time of, or aftej the testator's 
 death, he is so incapable of acting as executor as to bring 
 such case within the rules under which administration 
 cum testamento annexo is granted, for if cited to accept or 
 refuse, could he appear, unless by habeas corpus ? Until, 
 however, the judgment of Sir C. Cress well is reversed, the 
 law is that he may, notwithstanding the fact of imprison- 
 ment, ask for and obtain probate of his testator's Will. 
 
 An executor derives his authority to act as such solely Executor's 
 from the Will of- the testator who appoints him, and as a der^°e"*from 
 consequence of this principle, his interest is completely *•»« ^^^ > 
 vested at the instant of his testator's death. 
 
 Accordingly, before authenticating the Will by taking and therefore 
 probate of it, he may perform almost every act which is form Ylmost 
 incident to the office he holds. "Not to mention the every act 
 
 ^ incideut 
 
 to his office 
 (o) 2 EoK Ecc. Rep. 128. before probate. 
 
462 
 
 WILLS 01" PERSONAL PROPERTY. 
 
 What acts he 
 may perform. 
 
 Qualification of 
 above rule. 
 
 Why an 
 executor is 
 clothed with 
 such powers. 
 
 Meaning of 
 term probate. 
 
 funeral, he may make an inventory, and possess himself 
 of the testator's effects : he may enter peaceably into the 
 house of the heir, and take specialties and other securities, 
 for the debts due to the deceased, or remove his goods : 
 he may pay or take releases of debts owing from the 
 estate : he may receive or release debts which are owing 
 to it : he may sell, give away, or otherwise dispose, at his 
 discretion, of the goods and chattels of the testator : he may 
 assent to or pay legacies : he may enter on the testator's 
 terms for years : he may commence actions in right of the 
 testator, as for trespass committed, or goods taken, or on a 
 contract in the testator's lifetime, although he cannot 
 declare [now, deliver his statement of claim] until probate, 
 which, however, will have relation to the time of issuing 
 the writ" (p). 
 
 Such are some of the acts which an executor, before 
 probate is granted of the Will, is warranted in perfoi-ming, 
 and which his death before probate will not annul ; but of 
 course we need hardly say that, as he is acting in trust for 
 all parties interested under the Will, or the general pur- 
 poses thereof, he will coUusively or fraudulently perform 
 any of the acts above mentioned, at the risk of being 
 called upon to account for what he has done before the 
 proper tribunals (g). For it is to be borne in mind that 
 the true reason why such great powers are vested by law 
 in an executor, is to enable him, standing as he does ia 
 the place of his testator, effectually to possess himself of 
 his testator's property, so as therefore the better to dis- 
 charge his duties to those who have claims upon the estate 
 committed to his care. Accordingly, notwithstanding his ex- 
 tensive authority, he cannot bequeath the testator's assets. 
 
 By the term probate is meant the authentication or 
 official validation of a Will by the course pointed out by 
 law, and rules framed thereon for that purpose (r). Now, 
 
 (y) Toller Exors. 45 ; 1 Wms. 
 Exors. Ft. 1, bk. 4, eh. 1, § 2, 302 ; 
 2 Wms. Exors. Pt. 3, bk. 1, ch. 1, 
 932, et seqq. 
 
 (q) See 2 Wms. Exors. Pt. 5, bk. 
 2, chaps. 1-4, 1930 to the end of 
 the treatise. 
 
 (r) See 20 & 21 Vict. c. 77, ss. 
 
OF EXECUTORS AND ADMINISTEATOIIS. 4G3 
 
 after an executor, to whom personal property is bequeathed Effect of 
 
 . r T • ii probate on 
 
 as a trustee thereof, " the circumstance oi taking probate executor's 
 of the Will is itself an acceptance of the particular trusts : position. 
 Therefore, where the Will contains express dii-ections what 
 the executors are to do, an executor, who proves the Will, 
 must do all which he is directed to do as executor, and he 
 cannot say that though executor he is not clothed with 
 any of these trusts " (s). 
 
 It must not be supposed, however, that it is merely in what con- 
 from this official recognition of the validity of a Will efficacy of a 
 that an executor derives his power to act in his office; 1^^"*°*^™' 
 this, we repeat, he receives wholly and solely from the 
 Will itself (t). The great efficacy of the probate thereof 
 lies in this, that it not only authenticates and is conclusive 
 evidence of the executor's title, but is the only evidence that 
 can be given to prove that title in a Court of Justice ; for 
 the Will itself, or a copy of it unproved, is not evidence («). 
 
 The circumstance that an executor's power comes to him The great 
 directly from the testator's Will, is that which constitutes difference 
 
 •' between the 
 
 the main difference between an executor and an Adminis- office of 
 TEATOR {v), for the latter derives his title from the law adm^Xtor. 
 through his appointment to the office by the High Court Source of an 
 of Justice, in its Probate Division. Accordingly, unlike an admimstrator'a 
 
 , . , power. 
 
 executor who can, as we see, act before taking probate, an 
 administrator can do next to nothing (w) until empowered 
 
 29, 30, and the Rules of the Prin- See the Judgt. of Lord Wensleydale 
 cipal Registry of the Probate Divi- in WhiAr v. Ewme, 7 H. L Cas. 
 sion of the High Court of Justice in 124 ; 28 L. J. Ch. 396. As to pro- 
 Contentious and N on- Contentious bate of Wills as evidence, in ac- 
 Business. See the treatises on Pro- tions concerning testamentary dis- 
 bate by Mr. G. Browne, or that of positions of realty, see 20 & 21 Vict. 
 Mr. Coote. c 77, s. 64. 
 
 (s) 2 Wms. Exors. Pt. 4, bk. 2, (v) Ante, p. 61. As to intestacy, 
 
 ch. 2, § 2, 1796 ; see also Id. Pt. 3, see ibid-., and meaning of Letters of 
 
 ■fak. 1 , ch. 1, 932, and note (/) p. Administration, 62. 
 933. (w) For instances where letters of 
 
 (i) 1 "Wms. Exors. Pt. 1, bk. 4, administration have been held to 
 
 ch. 1, § 293. iave relation to the time of an in- 
 
 (m) Pitmey v. Finney, 8 B. & C. testate's death, so as to give validity 
 
 335. The probate is also conclusive to acts done by an administrator 
 
 evidence that a Will is in the proper before the grant, see 1 Wms. Exors. 
 
 form of a testator's place of domicj'Ze. Pt. 1, bk. 5, ch. 1, § 2, 406. 
 
464 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Claims by or 
 against an 
 executor or 
 administrator 
 may now be 
 joined with 
 claims by or 
 against him 
 personally. 
 
 Probate can- 
 not issue 
 •within seven 
 days from the 
 testator's 
 death. 
 
 Precise time 
 when Will 
 mViSt be 
 proved is 
 uncertain. 
 Practice where 
 three years 
 have elapsed 
 since death of 
 testator. 
 
 by the Court, by virtue of the grant of Letters of Adminis- 
 tration for such purpose. 
 
 That species of misconduct with which we have said 
 that executors are liable to be charged, "is called in 
 law a devastavit, that is, a wasting of the assets ; and is 
 defined to be a mismanagement of the estate and effects 
 of the deceased, in squandering and misapplying the assets 
 contrary to the duty imposed upon them, for which executors 
 or administrators shall answer out of their own pockets, 
 as far as they had, or might have had, assets of the de- 
 ceased; " and this rule applies equally to administrators {x). 
 
 Claims by or against an administrator as such may 
 now (y) be joined with claims by or against him per- 
 sonally : provided the last-mentioned claims are alleged to 
 arise with reference to the estate in respect of which the 
 plaintiff or defendant sues, or is sued as executor or ad- 
 ministrator. 
 
 Probate of a Will, or Letters of Administration with Will 
 annexed, cannot issue until after the lapse of seven days 
 from the testator's decease ; and general Administration can- 
 not issue until fourteen days after that event, unless under 
 the direction of the President of the Probate Division, or 
 by order of two of the Registrars (z). The precise period 
 after a person's death when his Will inust be proved, or 
 power to administer his effects must be applied for is, it 
 appears, uncertain (a), but if these proceedings be deferred' 
 for three years after the testator's or intestate's death, the 
 reason of such delay must be certified to the Registrars of 
 the Probate Division, who may require such proof of the 
 alleged cause of delay as they may see fit (6). 
 
 (x) 1 Wms. Exors., as in preced- 
 ing note. Such acts on the part of 
 an executor or administrator, as will 
 amount or not to a devastavit, will 
 be found in "Wms. Exors. as above, 
 pp. 1796-1841. 
 
 (t/) Order XVII. Rule 5, under 
 the Judicature Act, 1875. For- 
 merly this could not be done, and 
 the change in the law is noteworthy. 
 
 (a) See the General Rules for the 
 Registrars of the Principal Registry 
 in Non-contentious Business, 1862, 
 43 & 44. ,As to the practice in District 
 Registries, see 20 & 21 Yict. c. 77, 
 ss. 46-53, and the Rules of 1863. 
 
 (a) 1 Wms. Exors. Pt. 1, bk. 4, 
 oh. 2, § 2, 318. 
 
 (b) No. 45 of the Rules mentioned 
 in note (s). 
 
OF EXECUTORS AND ADMINISTEATOES. 465 
 
 This, however, applies where the effects of the deceased Effect of 
 have not been intermeddled with; hut if an executor intermeddling 
 once perform any act of administration concerning the ^'* property, 
 property, he is bound to proceed, and if he omit to take 
 probate within six months after the death of the deceased, 
 or within two calendar months after the termination of an 
 action or dispute as to the Will, he is liable to pay a penalty 
 of £100 (c). Also the Commissioners of Inland Revenue 
 may sue out of the Exchequer Division of the High Court 
 of Justice a writ or summons calling upon him to deliver 
 to them an account of the estate of the deceased, together 
 with its value, and pay the duty thereon, or show cause 
 why he should not do so {d). 
 
 An executor who has interfered in any way with the Citation to ex- 
 property — that is, so as to amount to an act of administra- ^^^ ^^' 
 tion, without having taken probate — may be served with a ^°^ taking 
 citation, issuing out of the Probate Division Registry, 
 calling upon him to enter an appearance within a certain 
 time, and to take probate of the Will. If he refuse to 
 appear, or appear and refuse to take probate, the costs of 
 the proceedings will fall upon him, and he may be liable 
 to attachment in case of a continued refusal (e). 
 
 In like manner the High Court of Justice, by its Pro- Where ex- 
 bate Division, may cite a hesitating' executor to take or tatesasto' 
 refuse probate, in order to prevent the administration of refusing or 
 
 , . J 1 / ^N i~( accepting 
 
 the estate bemg delayed (/). Supposing, however, such probate, 
 executor to accept probate, the law allows him a year in 
 which to pay debts, legacies, and to generally wind up the 
 affairs of his testator ; but this may be done as quickly 
 as possible if the state of the testator's assets will admit of 
 such expedition being used (g). 
 
 Generally speaking, after administration is granted, the Power of 
 power of an administrator as to paying debts, collecting aft"r'rec3y^g 
 
 (c) 59 Geo. 3, c. 184, s. 137. (/) 1 Wms. Exors. Pt. 1, bk. 3, 
 
 {d) 28 &29 Vict. c. 104, s. 57. ch. 8, § 1, 274. 
 
 (e) See Mordatmty. Clarke, L. E. {g) 2 Id. Pt. 3, bk. 3, ch. 4, § 4, 
 
 1 P. & D. 692 ; 38 L. J. P. & M. 45. 1387. 
 
 H H 
 
466 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 letters of 
 administia- 
 tion, equal 
 to that of 
 execntor. 
 
 Executors or 
 administrators 
 bound to 
 proceed in a 
 certain speci- 
 fied manner 
 as to payment 
 of debts. 
 
 Tbeir right to 
 retain their 
 own debts. 
 
 They are also 
 bound to 
 exercise the 
 right to retain 
 for benefit of 
 others. 
 
 Order of 
 procedure by 
 executors or 
 administrators. 
 
 Funeral of 
 testator. 
 
 the effects, is equal to and with that of an executor (m) ; 
 but where an ordinary administrator — that is, one having 
 no testamentary paper for his guidance — distributes an 
 intestate's effects, he does so under the Statute of Distri- 
 butions, 22 & 23 Car. 2, Cj 10, which will be treated of in 
 our Chapter on the Jurisdiction of the Probate Division of 
 the High Court of Justice. 
 
 " The situation of an executor or administrator is fre- 
 quently one of great difficulty. The law imposes on him 
 the burden of paying the debts of the testator or intestate 
 in a particular order. On the other hand, it confers on 
 him certain privileges. One of these privileges is, that 
 among creditors of equal degree, he may pay one in pre- 
 ference to another" (n). He has, moreover, " a right to 
 retain for his own debt due to him from the deceased, in 
 preference to all other creditors of equal degree" (o). 
 Further, an executor or administrator has, as against the 
 general creditors of the estate, not only the right of re- 
 taining out of the assets of his testator or intestate, debts 
 due to himself as an individual, or as a cestui que trust, 
 but also has, and is bound to exercise, the right to retain 
 out of such assets due to him, debts due to him in the 
 character of trustee for others (p). 
 
 Having seen then, that the law compels an executor or 
 administrator to perform the duties devolving upon him 
 by certain regular steps, we will now state these in the 
 order of their performance. 
 
 1. The executor must, in the first place, bury the de- 
 ceased according to his rank and circumstances, and the 
 
 (m) 2 Wms. Exors. Ft. 3, bk. 1, 
 ch. 1, 925. 
 
 (to) Id. pt. 3. bk. 2, ch. 2, § 6, 
 1032, quoting from the judgment 
 of Abbott, C. J., in Lyfileton v. 
 Cross, 3 B. & C. 322. 
 
 (o) 2 Wms. Exors. 1039. See 
 cases of this kind in Toller, Exors. 
 290. Of course Equity will inter- 
 pose to prevent him from perverting 
 this privilege to the purposes of 
 
 &aud. ToUer, 298. 
 
 (p) Sander v. Heathfield, L. E. 
 19 Eq. 21, 44 L. J. Ch. 113 ; 
 in which Vice-Chancellor Malins 
 observed that the doctrine of re- 
 tainer was purely one of law, and 
 had always been really disapproved 
 of in Equity, although where there 
 was a legal right to retain. Equity 
 never took it away. 
 
OF EXECUTORS AND ADMINISTEATOES. 467 
 
 expenses for doing this are allowed in preference to all Priority of 
 debts and charges. But the executor is not iustified in ^'^^'^^i^^- 
 
 " _' penses over 
 
 incurring extravagant funeral expenses, and if he is not all debts, &c. 
 perfectly certain that his testator's estate is solvent, he Where estate 
 wiU do well to incur only those which are absolutely neces- tel^gXe^nt 
 sary. Where the estate is well known to the executor to 
 be insolvent, the only outlay which he is warranted in 
 making for the testator*s funeral are for the cofiin, shroud, 
 tolling the bell, the fees of the parson, sexton, and bearers ; 
 but not for the pall or ornamental additions to the cere- 
 mony, or for refreshments (g). 
 
 As, however, an executor is not always in a position to Where it is 
 ascertain with precision what may be the condition of the to'be°o7 
 testator's monetary affairs before his burial, an executor 
 will not be held responsible on light grounds even for 
 undue extravagance. This is so, especially where the 
 testator's Will misleads him, as in the case of an insolvent 
 person affecting to bequeath substantial legacies, and has 
 lived in a style which would seem to prove his ability to 
 do so. Under such circumstances an executor might 
 reasonably suppose that in incurring funeral expenses 
 other than those mentioned above, he would be burying 
 the deceased simply according to his or her condition in 
 life (r), which must be the executor's guide in the fulfil- 
 ment of this particular portion of his duty. 
 
 Any person may with safety incur the proper expenses a person may 
 of burying a corpse, where this duty is neglected by those ^^^ *'^? 
 upon whom it naturally and properly devolves ; and a without 
 stranger doing so will not be deemed to have intermeddled executof (fe 
 with the deceased's affairs so as to render himself liable «"" ''^'• 
 as an executor or administrator (s). If such person pays the 
 expenses out of his own pocket, he may sue the executor — 
 on the ground of an implied promise to pay — in the event 
 of a refusal to reimburse him ; but it is a good defence 
 
 iq) Toller, Exors. 245, 246. ch. 1, § 1, 969. 
 
 (?•) Stag V. Punter, 3 Atk. 119, (g) Toller, Exors. ui mpra. 
 
 cited' 2 Wms. Exors. pt. 3, bk. 2, 
 
 H H 2 
 
468 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Proving the 
 
 wm. 
 
 Inventory. 
 
 Present 
 practice as 
 to making 
 an inventory. 
 
 It is the duty 
 of a repre- 
 sentative in 
 point of law 
 to make an 
 inventory. 
 
 to such an action to prove that the testator left no 
 assets (t). 
 
 2. After the funeral, the next thing to be done is to 
 prove the Will, and, ii it he one disposing of or affecting 
 real estate — except id the case of copyholds — in the 
 counties of York or Middlesex, to register it in the proper 
 offices for that purpose (u). If the deceased has died 
 intestate, letters of administration must be taken out. 
 
 3. An executor or administrator, before each can admi- 
 nister — except where this proceeding cannot be deferred, 
 as in the case of disposing of perishable articles — is bound 
 by the Statute 21 H. 8, c. 5, to make an inventory of the 
 deceased's personal estate and effects, in the presence of, 
 at least, two of his creditors or legatees or next of kin, 
 and in their absence of two respectable persons. 
 
 The object of this enactment was, of course, to protect 
 the interests of persons possessing any claim upon the tes- 
 tator's or intestate's property ; but it is obvious that in 
 very many cases, to make an inventory would not be in 
 any degree necessary. Accordingly, " in modern practice, 
 •^ neither the executor or administrator, in general cases, 
 exhibits any inventory whatsoever, unless he be cited for 
 that pui-pose in the Spiritual Court [that is now the Pro- 
 bate Division of the High Court of Justice], at the instance 
 of a party interested" (x), who may, within a reasonable 
 time — which is, however, not specified by the law — call 
 for an inventory as a right, and even if his interest be 
 only of an apparent character (y). 
 
 In point of law, therefore, it is the duty of an executor 
 or administrator to make an inventory, and, as observed 
 in Toller on Executors (z), it is the part of a prudent 
 person in the above position, to see that the effects are 
 
 {{) 2 "Wms. Exors. pt. 4, bk. 2, 
 eh. 2, § 1, 1787-1791. 
 
 {u) Read the note at page 111 of 
 Hayes & Jarman's Forms of Wills. 
 
 (k) 2 "Wms. Exors. pt. 3, bk. 2, 
 ch. 1, § 3, 975. 
 (y) Id. 976. 
 (z) P. 249. 
 
OF EXECUTORS AND ADMINISTRATORS. 4^9 
 
 duly appraised, and reduced into an inventory — for reasons 
 that will occur to most minds. 
 
 If an inventory be made, it must contain a full, true, Nature of tie 
 and perfect description and estimate of all the chattels "i^^^*"^ 
 
 ^ -"^ . ... required. 
 
 real (a) and personal, both in possession and m action, but 
 not leaseholds for lives (b) which the deceased may have 
 died possessed of, and such only, for to them the executor 
 or administrator is entitled in his representative character, 
 as distinguished from the widow) heir, or a donee Tnortis 
 causa of the testator or intestate. 
 
 4. Supposing an inventory to be made, the next step of Collecting the 
 the executor or administrator is to collect the effects of ™^'=*^- 
 the deceased. It might appear at first sight as though 
 this operation were included in the former one of making 
 the inventory ; but a little reflection will show such not 
 to be necessarily the case. For instance, a man may leave 
 property in various parts of the country ; and, again, as 
 the inventory is to include choses in action, before these 
 could be collected, the executor or administrator might 
 have to go to law to recover them. The sense in which 
 the term "collect" is here used appears to be that of 
 taking possession of the deceased's personalty, or re- 
 moving it into such a position that the executor or ad- 
 ministrator may the better perform the duties devolving 
 upon, and for this reason the law requires executors and 
 administrators to use all diligence in so collecting the 
 effects which they have to distribute or account for. 
 
 6. The executor or administrator having acquired pos- 
 session of the testator's or intestate's personal estate, he 
 must proceed to discharge the debts of either, and the 
 order of procedure as to this is of great importance, and is 
 prescribed by the law, which of course will override any 
 directions of a deceased person of a contrary character on 
 the subject. The limits of this book will merely permit 
 us to show this order in the barest possible manner, and it 
 
 (a) See ante, p. 79 et seq., also (6) Ante, p. 176. 
 133. 
 
470 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Order of 
 payment of 
 debts. 
 
 Where the 
 
 an overseer, 
 officer of a 
 Friendly 
 Society, or 
 treasurer to 
 the Paving 
 Commis- 
 sioners. 
 
 Debts of 
 record due to 
 a subject. 
 
 is as follows : — The executor or administrator pays the 
 debts of the deceased thus : (c) 
 
 (1) His funeral expenses. 
 
 (2) Those incurred in proving his Will, or in taking out 
 
 letters of administration, or in a proper adminis- 
 tration suit. 
 
 (3) Debts due to the Crown as taxes, or those due to 
 
 the same by record or specialty, and, if these latter 
 are sufficient to swallow up the whole estate, they 
 must, notwithstanding that fact, be paid. But this 
 rule applies only to debts of the above description. 
 If the deceased person should happen to have been an 
 overseer of the poor (d), a duly appointed officer of a 
 Friendly Society (e), a treasurer or collector to the Metro- 
 politan Faving Commissioners (/), all sums of money 
 which shall be held by him in each of the above offices must 
 be handed over by his pei-sonal representative to the 
 churchwardens, the Friendly Society, or the Commissioners, 
 respectively, within certain periods specified — ^forty days 
 in the two first — before any debts of the deceased are 
 paid, excepting, presumably, those due to the Crown as 
 aforesaid. And where an officer or soldier dies on service, 
 the expenses of his last illness, his military debts — ^which 
 are defined in the Statute mentioned below (g) — ^will be 
 deemed preferential charges on his personal property, and 
 be payable in preference to all other debts and liabilities, 
 and in a certain order (g). 
 
 (4) Poor and local rates. 
 
 (5) Debts of record, that is to say, debts due to persons 
 
 who have obtained a judgment against the de- 
 ceased in a Court of Record, and which has not 
 been satisfied. In other words, judgment creditors 
 are next to be paid, for their claims form a con- 
 
 (c) On the authority of Williams 
 on Exeeviors, vol. ii. pt. 3, bk. 2, 
 ch. 2, § 1, 988 et seq., and ToUer 
 on Executors, bk. 3, oh. 2, § 1, 
 257 d seq. 
 
 {d) 17 Geo. 2, c. 38, s. 3. 
 (e) 18 & 19 Vict. c. 63, s. 23. 
 if) 57 Geo. 3, c. 22, s. 51. 
 {g) 25 & 26 Viet. o. 57, pt. 1, 
 . i. 
 
OF EXECUTORS AND ADMINISTRATORS. 471 
 
 tract of the highest nature, as between subject and 
 subject (h). A Court of Kecord is one where the 
 proceedings transacted are transcribed, enrolled, 
 and retained, and it appears that all Courts which 
 have the power to hold plea of debt above forty 
 shillings are to be considered as Courts of Re- 
 cord (i). When any judgment is pronounced by 
 the present High Court of Justice the entry of 
 the judgment shall be dated as of the day on 
 which such judgment is pronounced, and the 
 judgment shall take effect from that date (k). In 
 debts of record are included those due under Beoognizances, 
 Becogniz,ances, Statutes Merchant, StatvCtes ^j^^^'J ^^' 
 Staple, and recognizances in the nature of a Sta- Statute 
 tute Staple. The two latter terms are now prac- 
 tically obsolete, and the reader is referred to the 
 authorities mentioned below for further informa- 
 tion concerning them (l). We may, however, 
 remark that a judgment debt was always regarded 
 as of more importance than one due by Statute 
 Merchant or Statute Staple ; for a judgment, it 
 is seen, is a proceeding in invitum, while a debt 
 founded on the Statutes Merchant or Staple is 
 one incurred voluntarily in every case. 
 By a Recognizance is meant an obligation of record Meaning of 
 which a man enters into before some Court of record or *^.™ ^^""S" 
 
 mzcmce. 
 
 magistrate duly authorized, with condition to do some 
 particular act, as to appear at the Assizes as prosecutor, 
 witness, or defendant, to keep the peace, to pay a debt, or 
 
 {h) See 2 Black. Com. 465. called in the Equity and C. L. 
 
 (i) 2 Wms. Exors. pt. 3, bk. 2, Divisions of the H. C. J. a judg- 
 
 c. 2, § 2, 997, quoting Went. Off. ment. Jud. Act, 1873, sect. 100. 
 Ex. 271. {I) 2 "Wms. Exors. pt. 3, hk. 2, 
 
 {h) Judicature Act, 1875, Order ch. 2, ■§ 3, 1007 ; 2 Steph. Comm. 
 
 XLI. Rule 2. Before this Act, it 202 ; Coote on Mortgage, 74 ; 
 
 was a rule that a decree in Equity Mlis v. Begina, 4 Exch. Eep. 652 ; 
 
 was equal to a judgment at law. 19 L. J. Ex. 77, affirmed as Begina 
 
 The former term has, however, given v. Ellis, in 6 Exch. Eep. 95 ; 20 L. 
 
 place to the latter, and what was J. Ex. 348. 
 formerly termed a decree is now 
 
472 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Debts by 
 specialty and 
 simple con- 
 tract on same 
 footing since 
 1870. 
 
 Seal estate, 
 descending 
 or devised, 
 charged or 
 not with 
 payment of 
 debts. 
 
 the like. Accordingly we see that the obligation in question 
 may be entered into either to the Crown or to a subject. 
 The person who enters into the recognizance is called the 
 recognizor, the other the recognizee, and the term recog- 
 nizance means simply acknowledges — cognoscit — a fonner 
 debt upon record (m). When the recognizance is duly 
 enrolled, but not before, it takes precedence over all spe- 
 cialty debts : if it is not enrolled, the creditor claiming 
 under it is nevertheless entitled to rank as a bond cre- 
 ditor, that is, one possessing a credit secured by bond (n). 
 (6) Debts by specialty, that is to say, by instruments 
 under seal by the debtor (o), also rents, wages of 
 servants, clerks, and labourers. But now all cre- 
 ditors, since January 1 , 1870, creditors of a deceased 
 person stand in equal degree, and are to be paid 
 accordingly out of the assets of a deceased person, 
 whether they are legal or equitable assets (p). 
 If a deceased person leaves personalty and realty, the 
 latter may perhaps be devised expressly charged with the 
 payment of his debts, to be sold for payment of his 
 debts, not charged at all ; or the property may descend 
 with or without such incumbrance. But if realty be 
 ordered by the testator to be sold for payment of his debts, 
 or the property is not charged and descends, or if it be 
 devised and is or is not charged, his creditors, both by 
 specialty and simple contract, will be entitled^ to claim 
 pari passu (j). In short, a devise of lands for payment 
 of, or charged with, debts, although the persons to whom 
 they are devised, or who are directed to sell them, are 
 
 («i) 2 Black. Comm. 341. 
 
 («) See 2 Wins. Exors. pt. 3, 
 bk. 3, ch. 2, § 2, 1006. 
 
 (o) A specialty debt can only be 
 such when under the seal of the 
 debtor himself; consequently, an 
 arbitrator's award of rent made 
 under seal, the submission to arbi- 
 tration being also under seal, was 
 held not to create a specialty debt. 
 Talbot V. Earl of Shrewsbury, L. R. 
 
 14 Eq. 603 ; 42 L. J. Ch. 877. 
 
 (p) 32 & 33 Vict. i;. 46, and see 
 ante, pp. 129, 130. As to the 
 present law on administering the 
 assets of insolvent estates, see 
 Judicature Act, 1873, sect. 25, 
 sub-sect. 1. 
 
 (g) Notes to Silk v. Prime, 2 
 L. C. Eq. 138, the leading case on 
 the doctrine of equitable assets, 
 which it appears all assets now are. 
 
OP EXECUTOES AND ADMINISTRATORS. 473 
 
 executors, makes these lands assets in equity, to be distri- 
 buted among creditors pari passu, wliich is the precise 
 point of Silk V. Prime (1768). 
 
 It is the duty of a creditor to give notice of his debt to Creditor 
 an executor or administrator, if he desires to avail himself ^otl^of y^ 
 of the right to have a superior debt paid before one of an debt, 
 inferior character, for in the absence of such notice the 
 executor or administrator may pay in what order he 
 pleases ; and of debts of record the executor is presumed to 
 know, but not where the judgments obtained have not 
 been registered (r), even if notice thereof have been given. 
 
 By the Statute 22 & 23 Vict. c. 35, s. 29— An Act to Notice by 
 further amend the Law of Property and to relieve Trus- executor or 
 
 ^ •' administrator 
 
 tees (s) — it is enacted that " Where an executor or ad- to creditors, 
 ministrator shall have given such or the like notices, as 
 in the opinion of the Court in which such executor or 
 administrator is sought to be charged would have been 
 given by the Court of Chancery in an administration suit, 
 for creditors and others to send in to the executor or 
 administrator their claims against the estate of the 
 tes'tator or intestate, such executor or administrator shall, 
 at the expiration of the time named in the said notices or 
 the last of the said notices for sending in such claims, be 
 at liberty to distribute the assets of the testator or intes- 
 tate, or any part thereof, amongst the parties entitled 
 thereto, having regard to the claims of which such executor 
 or administrator has then notice, and shall not be liable 
 for the assets, or any part thereof, so distributed to any 
 person of whose claim such executor or administrator shall 
 not have had notice at the time of distribution of the 
 said assets or a part thereof, as the case may be ; but 
 nothing in the present Act contained shall prejudice the 
 right of any creditor or claimant to follow the assets or 
 any part thereof into the hands of the person or persons 
 who may have received the same respectively " (f). 
 
 (r) See 23 & 24 Vict. o. 38, s. 3. (t) Read with this 23 & 24 Vict, 
 
 (s) Commonly called Lord St. c. 38, s. 14. 
 Leonards' Act. 
 
474 
 
 WILLS OF PERSONAL PEOPBETY. 
 
 Nature of 
 the notice 
 required. 
 
 Wood. 
 
 Notice in local 
 papers not 
 sufficient. 
 
 It is seen that the legislature here not only gives pro- 
 tection to executors and administrators with regard to 
 their liability to account for mistakes in distributing the 
 assets of a deceased person, but enables persons in their 
 position to do what, before the Act, could not safely be 
 done except under the direction of the Court of Chancery — 
 namely, distribute the assets of a testator or intestate. 
 Provided the personal representative has complied with 
 the terms of this Statute, and has acted in good faith 
 in the performance of his duty, he becomes at once and 
 completely functus officio. "The true policy of the 
 Statute, at least of this branch of it," said Vice-Chancellor 
 Malins, in deciding the first case occurring under this par- 
 ticular section of it, " as that of this Court must be, is 
 this : that the remedy lies against those who have received 
 the assets, and not against those who have parted with 
 them " {u). Again, if an executor retains any legacies as 
 a trustee after appropriating them for the benefit of the 
 cestuis que trustent, he will no longer be under any 
 liability qua executor {u). 
 
 The next point for remark is this : — What is the notice 
 which the Court of Chancery would have given to credi- 
 tors and others in an administration suit 1 (x) 
 
 This question may be answered by the observations of 
 Lord RomUly, M. B.., in the case of Weightman v. 
 Wood(y). There a testator having committed a breach 
 of trust by allowing trust money to remain in the hands 
 of his solicitor two years, whereby the same was lost, his 
 executors were held personally liable for the amount. It 
 appeared that the executors had received no notice of the 
 circumstance until after distribution of the deceased's 
 assets, that they had advertised under 22 & 23 Vict. c. 35, 
 s. 29, in certain local papers, and to the effect that claims 
 against the estate were to be sent in within three weeJcs 
 from the date of their advertisement. On a bill being 
 
 (u) Clegg v. Bowland, L. R. 3 
 Eq. 368 ; 36 L. J. Ch. 137. 
 lx\ See the commencement of 
 
 sect. 29 of Lord St. Leonards' Act. 
 (y) L. E. 13 Eq. 434. 
 
OP EXECUTORS Al^D ADMINISTRATORS. 475 
 
 filed, the executors claimed the protection of the above it should 
 statute, but Lord Eomilly said : — " In this Court we never appear in 
 
 , i . . 1-1 • n • *''® London 
 
 allow an estate to be administered without notice being Gazette and 
 inserted in the London Gazette, and generally we require *'"^'' 
 an advertisement in The Times. When an estate is admin- 
 istered of a testator in the country, the notice is also inserted 
 in some newspaper having a local circulation in the neigh- 
 bourhood. Besides, the tiine within which claims were re- Three •weeks 
 quired to be sent in, namely three weeks, was too short" (s). period! * 
 (8) Assuming the executor or administrator to have at 
 length discharged all the testator's or intestate's 
 debts of whatsoever character, the next step to 
 be taken is to pay the legacies, if any are be- Legacies, 
 queathed ; and for this purpose he must have 
 recourse to the personalty as the primary fund. 
 Of course this duty cannot, ex necessitate rei, 
 devolve upon a simple administrator ; but where 
 a deceased has left an informal Will, or in any of 
 the cases enumerated at page 60 of this work, 
 where administration issues with the testamentary 
 papers annexed, the duty and power of the admi- 
 nistrator will be co-extensive with that of an exe- 
 cutor, and the Will to which such letters of admin- 
 istration are annexed must be proved as though 
 probate were taken of it by an executor (a). 
 The bequest of a legacy, whether it is general or Assent of 
 specific, transfers only an inchoate property to the lesratee. «'^ecutor or 
 
 r ' -I 1 /. , administrator 
 
 To ■ render it complete and perfect, the assent of the cum testammto 
 executor is required (6). The union of the two characters i™^^° * 
 of executor and legatee in one and the same person makes 
 no difference ; nor can an executor give himself a prefer- 
 
 (s) The period must be a reason- G. & S. 144. 
 
 alle one, and if appears that a (a) 1 Wms. Exors. pt. 1, bk. 5, 
 
 month is the shortest that can he ch. 3, § 1, 461, quoting 2 Black, 
 
 so accounted. As to the position of Comm. 504. 
 
 a creditor who fails to prove till the (6) Toller, Exors. 306 ; ] Rop. 
 
 time limited by advertisement has Leg. 843. 
 expired, see Broym v. Lake, 1 De 
 
476 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Assent may 
 be express 
 or implied. 
 
 Rule on the 
 subject. 
 
 Assent vben 
 presumed. 
 
 Retracting 
 assent. 
 
 Administrator 
 cum testamento 
 annexo on tbe 
 same footing 
 as executor. 
 
 Abatement of 
 
 ence in regard to a legacy, as in the instance of a debt. 
 The executor's assent may be express or implied, but it 
 should be of an unambiguous character, for the payment 
 of legacies in case of no assets may involve the executor 
 in the consequences of a devastavit. The following is 
 something like a rule on this subject : — " If an executor, 
 in his manner of administering the property does an act 
 which shows he has assented to the legacy, that shall be 
 taken as evidence of his assent ; but if his acts are refer- 
 rible to his character of executor, they are not evidence of 
 an assent to the legacy " (c). Accordingly, the fact of an 
 executor simply congratulating a legatee on his good 
 fortune would neither be an assent to his legacy nor 
 evidence of assent. 
 
 This assent may be presumed in certain cases, as for 
 instance where all the testator's debts have been satisfied, 
 and the executor delays payment of legacies, so as to 
 compel the legatees to appeal to the law, in which case 
 assent would be presumed to have been given. 
 
 As to the retracting of assent when once given, the 
 ability or otherwise of the executor must depend upon 
 circumstances and equitable principles. If, for instance, 
 an executor, under the impression that all the testator's 
 obligations have been satisfied, assent to legacies, and 
 then discover that he has made a mistake, he will not 
 be held to have given an unqualified and irrevocable 
 assent (d). 
 
 An administrator cutti testamento annexo, being in the 
 same position as an executor for most purposes, the pre- 
 ceding observations will apply to him as well as to an 
 executor (e). 
 
 It sometimes happens that a testator's assets, though 
 sufiicient to satisfy his debts and specific legacies, are not 
 
 (c) 1 Eop. Leg. 861, citing 7 (e) 2 Wms. Exors. pt. 3, bk. 3, 
 Taunt. 222. ch. 4, § 3, 1386. Tlio whole of 
 
 (d) 1 Bop. Leg. 856, citing Lord this section Is devoted to a con- 
 Eldon's judgment in Dashwood v. sideration of the rule as to an 
 BulkeUy, 10 Ves. 230. executor's assent. , 
 
01? EXECUTORS AND ADMINISTRATORS. 477 
 
 sufficient for payment of his general or pecuniary legacies. 
 When this is the case, the latter are subject to abatement 
 in proportion to the number of legatees, including, in this 
 case, the executor or executors (/). 
 
 " Generally speaking, nothing shall in such cases be Rule, 
 abated from the specific legacies. But if the testator 
 bequeaths specific legacies and also pecuniary legacies, 
 and directs by his Will that such pecuniary legacies shall 
 come out of his personal estate, or words tantamount ; 
 then, if there be no other personal estate than the specific 
 legacies, they must be intended to be subject to those 
 which are pecuniary ; otherwise, the words of the bequest 
 to the pecuniary legatees would be nugatory " (^). 
 
 An executor must take care to pay a legacy only into To whom a 
 the hands of the person who has authority to receive it. p^^^^ ^^ *° ° 
 Accordingly, he has no right to pay a legacy bequeathed Legacy to 
 to an infant either to the infant himself or to any other ™**''*- 
 person whatsoever without the sanction of the Chancery 
 Division of the High Court of Justice. His duty would be 
 — but executors have a discretion also in such cases — to 
 apply the income, or a part thereof, for the infant's main- 
 tenance, &c., and accumulate the residue by way of com- 
 pound interest for the benefit of the legatee himself or 
 those ultimately entitled to the fund, as trustees may 
 under the statute mentioned below (h) ; or, on the other 
 hand, an executor may pay the infant's legacy into Court 
 in the usual way (i). 
 
 A legacy to a married woman must, if paid at all, be To a married 
 paid to her husband ; but, " according to the modem ^™™*"' 
 authorities, an executor may decline to do so until the ' 
 husband consents to make a suitable settlement upon 
 her," which is in accordance with the equitable doctrine 
 of a wife's right to a settlement out of her own pro- 
 
 (/) See 2 Wms. ut swpra, % 2, which applies only to persons act- 
 
 1359. ing under a deed or "Will executed 
 
 (3) Id. ibid. after August, 1860. 
 
 (A) 23 & 24 Vict. c. 145, s. 26, (i) 36 Geo. 3, 0. 52, s. 32. 
 
478 
 
 WILLS OP PERSONAL PROPERTY. 
 
 A legacy is 
 due at tes- 
 tator's death. 
 
 perty (k) ; and in doing this he will be acting in a 
 perfectly legal manner (I). 
 "S^^bankrupt. If a legacy be due to a bankrupt, and the testator dies 
 before the legatee obtains his certificate of discharge, the 
 interest in this legacy belongs to the trustee in bankruptcy ; 
 unless it can be shown that the legatee was made a bankrupt 
 for the sole purpose of securing the legacy from him (m). 
 As a general rule, an ordinary legacy to which an 
 executor has assented is due on the day of the testator's 
 death, and payable within a year to the legatee, from whom 
 the executor should take a receipt ; but all legacies are 
 not so easily discharged. 
 
 According to the directions of the testator, legacies may 
 be respectively payable under a variety of circumstances ; 
 and various appellations have been applied to legacies to 
 denote the circumstances under which they are given or are 
 to be paid. It is not within the scope of this work that these 
 should be entered into with minuteness, indeed a separate 
 treatise would be required for this purpose — ^the subject 
 being governed by the rules of the consti'uction of Wills ; 
 but we may indicate in a very general manner what is 
 here meant (n). Suppose, for instance, an executor in 
 perusing his testator's Will discovers a legacy of lOOOJ. to 
 A. and his heirs or the heirs of his body. The question 
 arises what construction is he or the High Court of Jus- 
 tice to give to such a bequest. The object of the testator 
 is here to create an entail in personal property, a disposi- 
 tion which the law does not permit ; accordingly, the execu- 
 tor's duty in such a case would be to pay the money to A., 
 in whom it vests absolutely, without any limitation what- 
 ever (o). 
 
 Instance of 
 bequests re- 
 quiring con- 
 struction. 
 
 (i) 2 Wms. Exors. pt. 3, bk. 3, 
 ch. 4, § 5, 1414, where the authori- 
 ties are cited. 
 
 (l) Id. 1419. 
 
 (m) See 2 Wms. Exors, pt. 3. 
 bk. 3, ch. 1. § 1, 1052. 
 
 («) The sense given to certain 
 expressions occurring in Wills has, 
 
 however, been touched upon, as the 
 reader may remember, in Chapter 
 11. of this work, " On Wills of Per- 
 sonal Property." 
 
 (o) See the cases of Mohimon v. 
 FUzUrbert, 2 Bro. C. C. 127 ; Brit- 
 ton V. Tmning, 3 Mer. 176 ; and 
 ante, p. 116. 
 
OF EXECUTORS AND ADMINISTEATOES. 479 
 
 Take another case. A testator bequeaths a sum upon 
 trust to pay the income to H. for life, remainder upon 
 trust to pay the amount of the fund unto and among all 
 the children of H. equally, but that none of these shares 
 are to be paid or are to become vested interests in any of 
 the children until he, she, and they shall attain the age 
 of twenty-five. Here, then, comes in a rule of construc- 
 tion as to the word vested, and it appears that in such a 
 case as this it is to be construed as signifying indefeasible where 
 — that is to say, that the interests of the legatees are mJans^"- 
 not to be defeated by any other meaning being attributed defeasible." 
 to the word vested. Further, that a gift of the above 
 description is not too remote to take effect even on behalf 
 of a child bom after the testator's death ( p). 
 
 In order to distinguish legacies a variety of terms are. Terms em- 
 as before remarked, employed, but into a full explanation t/ngu?sh° ^^' 
 of these it is impossible now to enter : all that can be done various kinds 
 is to enumerate some of those terms, and direct the reader ^s^^^- 
 as to where he may obtain further information concerning 
 them . In the law of England, then. Legacies are known as : — 
 
 {A) General and Specific, which expressions indicate General and 
 the two main classes into which all legacies may ^P^"'*"- 
 be divided (q). 
 (B) Vested and Contingent (r). Where a legacy is Vested and 
 given to a person to be paid or payable at or ™"'™g™*- 
 when he shall attain the age of twenty-one, or at 
 a future definite period, the interest in the legacy 
 shall be considered to be vested in the legatee Kuiesofcon- ' 
 immediately upon the testator's death as debitum ^traction. 
 
 (p) This is in effect tKe case of Jn 2 Wms. pt. 3, bk. 3, ch. 2, § 5, 
 
 /•e^imojisore's^stotejL.R. 5Eq. 389. 1225 et seq., where the exceptions 
 
 (?) See 1 Rop. Leg. 191 ; 2 "Wms. to the rule will be found. As to 
 
 Exors. pt. 3, bk. 3, ch. 2, § 3, the meaning of "vested" and 
 
 1158, and ante, p. 332. "vested interest," see ante, p. 63 ; 
 
 (r) Supra, ii. (a), and amte, pp. and for cases e.5r.,i2e i'a?'?''s Trusts, 
 
 434 451. The general rule is, that 41 L. J. Ch. 170; Re Deighton's 
 
 ' ' where a beq^uest is in terms imme- Settled Estate, 45 L. J. Ch. 825 ; 
 
 diate and the payment alone is but of course the cases on this 
 
 j)ostponed, the legacy, is vested." subject are innumerable. 
 
480 
 
 WILLS OF PEESONAL PEOPERTY. 
 
 When legatee 
 dying before 
 payment is 
 made. 
 
 Effect of using 
 or omitting 
 words "pay- 
 able " or " to 
 be paid." 
 
 Nature of the 
 above rules. 
 
 Lapsed legacy. 
 
 Use of word 
 "heirs," &c., 
 &o., generally 
 of no use ; 
 
 in prcBsenti, solvendv/m in futuro, for the time is 
 annexed only to the payment, and not to the legacy. 
 Hence it is that if an immediate legatee happens 
 to die before the day of payment arrives, his 
 assignee or personal representative will be entitled 
 to the legacy (s). On the other hand, should the 
 words " payable " or " to be paid " not appear, 
 and the legacy is given on the legatee attain- 
 ing twenty-one, or if, when, in case or provided 
 that he do so, these expressions do annex the 
 element of time to the gift itself, and make the 
 legatee's right to it depend on his being alive at 
 the date fixed for payment. Consequently, if the 
 legatee happens to die before that period arrives 
 his personal representative will not, as in the 
 former case, be entitled to the legacy, for the 
 legatee himself took no vested interest therein (^). 
 These two rules of construction, which are of a 
 positive character, embody the leading principle 
 adopted by the Chancery Division of the High 
 Court of Justice in affixing a meaning to expres- 
 sions of the above character occurring in WiUs (s). 
 (C) A Lapsed Legacy, strictly speaking, is one which 
 the legatee is unable to receive by reason of his 
 death before that of the testator, causing his 
 legacy to fall into the residue of the testator's 
 personal estate ; but a legacy is said to lapse in 
 other cases also — as, for instance, if A. in his WiU 
 gives a bequest to B. of 1001. so long as she 
 remains unmarried, and B., during the testator's 
 lifetime, marries, the legacy fails, and is commonly 
 said to lapse ; but it would be more accurate to 
 say that the failure of the gift is in the nature of 
 a lapsed legacy. The fact of a testator making 
 a legacy payable to the legatee, his executors, 
 administrators, assigns, heirs, or personal repre- 
 
 (s) 1 Rop. Leg. 563. Wms. Exors. pt. 3, bk. 3, ch. 2 
 
 (t) 1 Kop. Leg. 556, and see 2 § 5, 1224. 
 
OF EXECUTORS AND ADMINISTEATORS. 481 
 
 sentatives, (u) will not prevent its lapse under the 
 above circumstances ; and evidence cannot be 
 given that the intention of the testator really 
 was that the gift should not lapse. Nor will the Nor deferring 
 fact that payment of a legacy is to be defen-ed payment of 
 for any period after the testator's death prevent legacy, 
 it from lapsing, if the legatee die during the tes- 
 tator's lifetime ; but of course a testator may Testator may 
 specifically provide that no lapse of an intended wfatatl °° 
 gift shall take place under any circumstances, take place. 
 Further, it appears to be established, that where Where use of 
 there is a bequest "to A. or his personal repre- theSnatiye, 
 sentatives," or "to A. or his heirs," the word or, &«•. &o.,jnay 
 generally speaking, implies a substitution, so as to lapse, 
 prevent a lapse (a;). Nor will a lapse take place No lapse wten 
 where the legatee is a trustee of the gift for l«g**^eisa 
 another person ; nor where money is left to A. so 
 as to include a debt owing by B. to the testator, 
 to be released by the former after the testator's 
 death, for if A. dies in the testator's lifetime, the 
 debtor will in such case be held discharged both 
 from the debt and interest thereon {y). 
 It may have occurred to the reader to consider a case ComnomrUes, 
 where it is alleged, or where as a fact it has happened, that ™ testator and 
 the testator and a legatee under his Will have died at or at the same 
 nearly at the same time. Persons so dying are called in law *™®' 
 comvnorientes, and instances of this species of coincidence 
 are not unknown in our Courts. A very notable one is, that Underwood t. 
 disclosed by the case of Underwood v. Wvng, originally ^™S'- 
 decided by Sir John Romilly, M.E., and whose decision was 
 afiirmed by Lord Cranworth, 0., assisted by Wightman, J., 
 and Martin, B., in 1855 (0). There, a testator by his Will 
 
 (m) 1 Eop. Leg. 467. 'SssABrowne Brougham, C, in 1834. 
 T. Hope, 41 L. J. Ch. 475. (y) See South v. Williwms, 12 
 
 (x) 2 Wms. Exors. pt. 3, bk. 3, Sim. 566 ; 11 L. J. Ch. 411 
 
 oh. 2, § 5, 1209, citing Git^ngs v. (1842). 
 
 McDermott, 2 Myl. & K. 69 ; 2 L. J. (2) 19 Beav. 459 ; 23 L. J. Ch. 
 
 Ch. 212, decided hy Sir John 982 ; 4 De G. M. & G. 633 ; 24 
 
 Leach, M. K., and affirmed by Lord L. J. Ch. 293. 
 
 I c 
 
482 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Qaestions in 
 the case. 
 
 The title to 
 property is 
 'primA fade 
 in a deceased 
 person's 
 next of kin. 
 
 No presmn/p- 
 tion of sux- 
 viTorship in 
 these cases. 
 
 Term 
 
 "lapsed" ap- 
 plies to de- 
 visees as well 
 as bequests. 
 
 gave all his real and personal estate to W., in trust for his 
 wife absolutely, and " in case my said xvife shall (Me m 
 my lifetime, then in trust for such of my three children, 
 A., B., and C, as shall attain the age of twenty-one, or 
 marry under that age ; or in case all of them shall die 
 under the age of twenty-one, being sons, or under that 
 age and unmarried, being a daughter," then he gave all 
 his property to W. absolutely. The testator, with his wife 
 and children — two sons and a daughter — having embarked 
 on board a ship bound for Australia, were all lost at sea 
 during a storm. Four of the family, namely, the husband, 
 wife, and the two boys, were all swept by one wave into 
 the sea, and were seen no more ; but the girl was proved 
 by evidence to have lived about half an hour after the 
 others were drowned. W. proved the Will, but a bill in 
 Chancery was filed by the daughter's representative, who 
 claimed to be entitled, as such, to the residuary estate of 
 the testator. The questions then were, first, who was to 
 have this — W., the person named in the Will, who was to 
 take " in case my said wife shall die in my lifetime," or 
 the next of kin of the daughter ; and, second, on whom 
 rested the burden of showing that the wife did or did not 
 die in the testator's lifetime 1 The Lord Chancellor laid 
 down the principle that the primd facie title to property 
 being in the next of kin of a deceased person — rebuttable 
 of course by exhibiting his Will dMly executed — the burden 
 of showing that the wife survived lay on W. The Court 
 declined to presv/me that the testator had survived his 
 wife, and, as this could not be proved, the property was 
 declared to belong to the next of kin, siace upon the 
 general construction of the Will, the benefits given to W. 
 were to depend upon the survivorship of the husband. 
 Decisions, then, under circumstances like those stated 
 above, must depend entirely upon evidence, the doctrine 
 as to which will be found in the case just cited. 
 
 The term lapsed is just as applicable to the failure 
 of a devise of realty as to that of a bequest of per- 
 
OF EXECCJTOES AND ADMINISTRATOKS. 483 
 
 sonalty. But by the Wills Act, 1838, sect. 25, it is Lapsed de- 
 enacted that, unless a contraiy intention shall appear by legacies since 
 the Will, such real estate, or interest therein as shall be •^*^^- 
 comprised, or intended to be comprised, in any devise in 
 such Will contained, which shall fail or be void by reason 
 of the death of the devisee in the lifetime of the testator, 
 or by reason of such devise being contrary to law, or other- 
 wise incapable of taking effect, shall be included in the 
 residuary devise (if any) contained in such Will [a). 
 
 Lastly, if the devisee or legatee under a Will be the ^^re the 
 
 d6vis66 or 
 
 child or other issue of the testator, the devise or bequest legatee is a 
 to such child will not lapse by reason of his dying in the f'^'l^* ^ g 
 lifetime of the testator, if the child leaves issue, living at can be no 
 the time of testator's death, and the devise or bequest be ^^^' 
 not merely of a life estate or interest (6). " Issue " here has 
 been held to mean " any issue " (c), as in the case below. Case. 
 There, a testatrix. A., had bequeathed all her personalty 
 to her daughter B., who died a widow and intestate in 
 the lifetime of the testatrix, leaving a daughter, C. C. 
 also died intestate in A,'s lifetime, leaving a husband, D., 
 and a daughter, E., both of whom survived A. D. having 
 applied for administration of the property of C, and then 
 for administration with the Will of A. annexed, Sir C. 
 Cresswell held that as E., the grandchild, was living at the 
 date of the death of A, the legacy had not lapsed, and 
 that D. was entitled to the grant as administrator of C, 
 the legatee. 
 
 (D) Demonstrative Legacies. These are really such as Demonstrative 
 are partly in the nature of specific legacies, and ^^*°'° ' 
 partly in the nature of those of a general character- 
 They are so far specific that they are intended to partake of the 
 
 ,.,.» j-ir-i 1 1 nature of both 
 
 be paid out oi some particular fund, and general, genferai and 
 
 inasmuch as they are pecuniary in nature. Again, specific 
 
 legacies. 
 
 {a) As to the lapse of an estate vises and bequests, see Hayes' and 
 tail, see sect. 32. Jarmam's Forms of Wills, 86. 
 
 (5) Sect. 33. As to the difference (c) In the goods of Parker, 1 Sw. 
 between the law before 1838 and & Tr. 523 ; 31 L. J. P. & M. 8, and 
 since on the subject of lapsed de- the Chancery cases there cited. 
 
 I I 2 
 
484 
 
 WILLS OF PERSONAL PEOPERTY, 
 
 Illnstrative 
 case. 
 
 Judgments 
 
 if the funds out of which they are payable fail, 
 they will not thereby fail, but will be taken out 
 of the general assets. Like specific legacies, they 
 wiU not be liable to abate with the general ones 
 upon a deficiency of assets; yet, unlike specific 
 legacies, they are not liable to be adeemed by aiiy 
 act of the testator in his lifetime: hence the 
 importance of demonstrativ& legacies (d). The 
 question whether a legacy is to be construed as 
 general, specific, or demonstrative, is one that 
 has frequently engaged the attention of Courts of 
 Equity, and a very recent case may be cited that 
 will illustrate the above remarks as to this class 
 of gifts. A testatrix made a Will, which for present 
 purposes was in effect this : — " I give.and bequeath 
 to H., his executors and administrators, all my 
 money which shall be out at interest, invested in 
 the funds, or otherwise secured, at my decease, 
 upon trust, to pay thereout all my just debts and 
 funeral expenses, and in the next place to pay to 
 H. W. M. the sum of 3000Z. invested in Indian 
 security, &c.'' The testatrix died in 1874, and at 
 the date of her Will she was possessed of Indian 
 Bonds, but these having been paid off atpar inl873, 
 she had no Indian securities at her death. A bill 
 having been filed by the infant children of H.W.M., 
 praying that this legacy might be held not spe- 
 cific, the executor contended that the legacy was 
 specific, and being so, had been adeemed by the 
 testatrix. Vice-Chancellor Malins, in giving judg- 
 ment for the children, said : — " This case is by no 
 means free from difiiculty, and the questions of 
 general and specific legacies are often of consi- 
 derable nicety. It has been argued that to con- 
 strue this legacy as specific would be to disappoint 
 
 (d) 1 Rop. Leg. 192 ; 2 Wms. 
 Exors. pt. 3, bk. 3, ch. 2, § 3, 1160, 
 
 and read Oliver v. Olmr, L. E. 11 
 Eq. 506 ; 40 L. J. Ch. 189. 
 
OF EXECUTORS AND ADMINISTRATORS. 485 
 
 the intention of the testatrix, because, if this is a 
 
 specific legacy it is lost. But however clearly that Decision must 
 
 might be the case, if the form of the gift is depend on the 
 
 ° farm of a 
 
 such that the Court must hold it to be a specific gift, 
 legacy, the Court must so decide, independently of 
 any hardship which might result from such a 
 'conclusion. But at the same time the Court Court does not 
 will look anxiously, at the whole frame of the ^^^f'*" 
 Will, and lean against construing a legacy as spe- otter legacies. 
 
 cific Now, did the testatrix intend 
 
 by this bequest to give only this particular secu- 
 rity? If she had said 'my 30001. invested in 
 Indian security,' that would have been specific, 
 and the gift would fail, the particular substance 
 of it not being in existence. But did she intend 
 to give her nephew and his children a legacy at 
 all events, and not on specific securities ? Because 
 if so, this was a demonstrative legacy, which had the Demonstrative 
 advantage of being more beneficial than a general uf^Jto "° 
 legacy ; " — ^that is, for the reasons above mentioned, ademption, 
 and also because demonstrative legacies are not 
 within the rule as to ademption of ordinary 
 legacies (e). Whether, then, a legacy is demonstra- 
 tive or specific wUl depend more upon the form of 
 the gift than upon the intention of the testator, 
 though the latter will also guide the Court when 
 that form presents features of peculiarity. And the 
 test for determining whether a legacy is of either Test for 
 of the two forms in question, is by seeing whether •Xel^'kg&ey 
 the gift is one of a particular fund itself, or out of i^ specieo or 
 
 ^ . demonstrative. 
 
 that fund. Thus if I give " my iglOOO consols " 
 this would be a specific gift ; if I give £100 
 
 (e) Mytton v. Mytton, L. E. 19 legacy Is set out in the text, one 
 
 Eq^. 30 ; 44 L. J. Ch. 18 ; and see disadvantage of this sort of gift 
 
 Mullms V. Smith, 1 Dr. & Sm. 204, may be also noted, -which is, that, 
 
 ■where the distinction between gene- like a general legacy, it does not 
 
 ral, specific, and demonstrative carry interest from the testator's 
 
 legacies is considered. As the bene- death. Mullins v. Smith, supra. 
 ficial character of a demonstrative 
 
486 
 
 WILLS OF PERSONAL PEOPBETY. 
 
 Cumalative 
 
 Same legac; in 
 same instru- 
 ment. 
 
 Wien the 
 legacy is 
 specific, there 
 can be no 
 addition. 
 
 out of my £1000, it would be demonstrative, for 
 the reason that I point out the particular fund 
 out of which the legacy is to be paid (/). 
 (E) Cumulative, Accumulative, or Eepeated Legacies. 
 Where two or more legacies are given to the 
 same person, either by the same Will or by 
 the Wills and codicils, the question may arise 
 whether legacies thus given are to be regarded as 
 so many distinct gifts bequeathed as such, or 
 whether the testator merely has announced his in- 
 tention on so many occasions that the one gift or 
 the other mentioned shall take effect, in other 
 words whether he has simply repeated himself, 
 intending thereby nothing more. Now, if in a Will, 
 a legacy be given to A., and further on in the same 
 Will a legacy of precisely the same amount be given 
 again, this circumstance raises a presumption, 
 — which it appears is rebuttable by extrinsic evi- 
 dence, admissible to support but not defeat the 
 gift — that the second mention of the legacy was 
 merely an inadvertence, and intended as a repe- 
 tition of the testator's intention when "he gave it 
 in the first instance (g). 
 If the same legacy in the same Will or codicil, or in 
 different Wills or codicils be specific, it is obvious that, 
 unless ■ there be two or more things answering exactly 
 to the description of the chattel bequeathed, the secoiid 
 mention of the gift must be merely a repetition of the 
 first. Thus, where a testatrix by the first codicil to her 
 Will gave C. her single stone diamond ring, and the 
 fourth codicil gave her the same thing in the same words, 
 Lord Hardwicke held that C. and indeed all the other 
 legatees in the later codicil were entitled only to the gifts 
 mentioned in the first one (h). 
 
 (f) For further information the 
 reader Is referred to the case of 
 AshUv/rner v. Macgwvre, and the 
 notes thereto, 2 L. C. Eq. 267. 
 
 (jr) Ernst V. Beach, 5 Madd. 
 
 Callen, 6 Hare, 631 ; 
 144 ; Lee v. Pain, 
 
 351 ; Ilsch V. 
 17 L. J. Ch, 
 post, n. (i). 
 
 (h) Duke of St. Albans v. Beau- 
 clerk, 2 Atk.'636. But see the oh- 
 
OF EXECUTORS AKD ADMINISTEATOES. 487 
 
 If in the same instrument there be legacies of different General 
 amount or kind to the same person, the rule is that the ^f^^ent"* 
 gifts in this case are cumulative, especially where the amount in 
 second gift is of larger amount than the first ; accordingly, ment. 
 the legatee will take the sum total {i) ; and this is so even if 
 the testator in the second portion of his Will erroneously 
 allude to the former gift as though it were of smaller 
 amount than he originally stated it. Thus, where A. 
 gave to B. the interest of £1000, and then another sum 
 of £1000 in addition to the £1000 before mentioned, the 
 latter gift was held to be absolute to B., who was entitled 
 to both legacies (k). 
 
 We now come to consider (1) the effect of giving General 
 legacies of the sarne amount by two instruments, and different" 
 (2) that of giving legacies of different amount by sepa- amounts ty 
 rate instruments. And first it may be observed, that papers, 
 although a Will and number of codicils may form but one Will ana 
 WiU, yet as testamentary writings they must, at least for different"^ 
 the purpose of making a legacy cumulative, be regarded mstrimmts, 
 as distinct instruments, but of course a testator may if he form but one 
 pleases make them operate as one instrument. The ^'^• 
 general rule then as to the first part of our consideration 
 — namely, as to the sarne gift being repeated in a Will 
 and codicils — is this : If a testator make a Will with codi- where a 
 oils, no matter how numerous they may be, and give a game^amount 
 legacy to A. in his Will, and repeat that legacy in each of is given by 
 the subsequent papers, A. will primd facie be entitled to iuas^Mession 
 
 of codicils. 
 
 servations of Lord Justice James on (*) Mann v. Fuller, Kay, 624 ; 
 
 this case in WUson v. O'Leary, 23 L. J. Ch. 543. As to wbere a 
 
 L. E. 7 Cb. 448 ; 41 L. J. Ch. 344; testator made a miscalculation of Miscalculation 
 
 affirming the decision of Vice-Chan- the sum total of two bequests, see of amount by 
 
 cellor Bacon L. R. 12 Eq. 525 ; 40 Morgan v. Middlemiss, 35 Bear, testator. 
 
 L. J. Ch. 709 ; also Hooley v. 278 ; and where class of persons 
 
 Eatton 2 L. C. Eq. 346. 'was misdescrHed, and evidence was Misdescription 
 
 (i) Curry v. Pile, 2 Bro. C. C. held admissible to show whom the "f class. 
 
 325, judgment of Lord Thuilow; testator meant, i««T. Pai», 4 Hare, 
 
 Eooley v. Matton, supra. 201 ; 14 L. J. Ch. 346. 
 
488 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Primd facie 
 preBumption 
 in favour of 
 legatee rebut- 
 table. 
 
 Case. 
 
 Function of 
 the Probate 
 Division, High 
 Court of 
 Justice in 
 these ca^es. 
 
 the entire amount of such legacies (1). But this pre- 
 sumption is rebuttable by the internal evidence of the 
 papers themselves, combined with a consideration of the 
 circumstances surrounding them. For instance, the giving 
 two sums of the same amount, and for the same expressed 
 cause, in two codicils executed on the same day, each con- 
 taining the same gift to the same person, would be deemed 
 a circumstance calculated to rebut the presumption as to 
 addition. Thus, where A., on the same day in 1868, made 
 two codicils to his WiU substantially identical, by each 
 of which he gave a legacy of ^65000 for life to D., who at 
 the death of A. was in possession of both papers, it was 
 held that these codicils were merely duplicates of each 
 other, and that D. took the one sum mentioned (m). 
 
 The Probate Division of the High Court of Justice too 
 may — and its chief function is — to inquire into the inten- 
 tion of a testator in such cases, so far as the factum of a 
 testamentary paper is concerned, and it may admit parol 
 evidence to show that a codicil alleged to be cumulative, 
 has in fact been revoked by one of later date, that is, where 
 there exists doubt and ambiguity on its face, requiring 
 the aid of extrinsic evidence to explain it. But unless 
 there be on the face of the instrument objected to some- 
 thing from which the Court may infer that it was in- 
 tended as substitutionary, as where the same sum is 
 given for the same cause expressed, in short nothing in- 
 consistent on the face of two papers alleged, not be 
 cumulative, they wiU not be prevented from operating 
 together, and will be admitted to probate {n). 
 
 (I) Booley t. Hatton, 2 L. C. 
 Eq. 346. It may appear that this 
 doctruie is at variance with that 
 expressed in The Duke of St. 
 Albans v. £eaucUr!c, but "the 
 ratio decidendi there was that the 
 Court was unable to come to the 
 conclusion from the peculiar man- 
 ner in which the Will referred to 
 the codicil, and the codicil to the 
 Will, that the case was to be 
 
 brought within the rule applicable 
 to gifts in the same instmment. " 
 Judgt. of Lord Justice James in 
 Wilson V. O'Leary, L. R. 7 Ch. 
 448; 41 L. J. Ch. 344, affirming 
 the judgment of Bacon, V.-C, L. B. 
 12 Eq. 525 ; 40 L. J. Ch. 709. 
 
 (m) WhyU V. Whyte, L. K. 17 
 Eq. 50 ; 43 L. J. Ch. 104 (1873). 
 
 (n) See the judgment of Sir J. 
 NichoU in Methuen v. Meihuen, 2 
 
OF EXECUTORS AND ADMINISTEATOES, 489 
 
 Where (2) the legacies given by separate instruments Legacies of 
 are of different amounts, then the rule is the same, for amomtein 
 where in different writings there is a bequest of equal, distinct 
 greater, or less amount, it is an augmentation (w), and 
 evidence of motive on the testator's part cannot be re- 
 ceived in such cases (o). In Wilson v. O'Leary, it niustrative 
 appeared that Sir De Lacy Evans, the testator, having '^^' 
 made his Will, added thereto two codicils, made in 1867 
 and 1868 respectively. By Cj he gave R. £4000, 
 S. £2000, T. £2000, U. £2000, V. £3000, W. £500, 
 X. £1500, and an additional £500 if he remained with 
 testator until his death, £1500 to Y., £2000 to Z., and 
 lastly, a year's wages to each of his servants. By Cj, Sir 
 De L. Evans gave R. £2000, S. and T. £1000 each, and 
 to U., v., W., X., and Y. as in C , . Z., however, was 
 omitted, while E. appeared as an additional legatee. The 
 question under these circumstances was whether the 
 legacies given by the C^ were cumulative or substituted, 
 and Vice-Chancellor Bacon held them to be cumulative. 
 Here it is seen that the testator by two separate writings 
 without the expression of any motive or reason for his 
 proceeding, gives two legacies of different amounts to the 
 same persons. In such a case, the gifts are said to be Meaning of a 
 made simpliciter, that is, without anything stated as to gWen'sim^Ic 
 why they are given, and the rule is that where they are *«»■■ 
 so bequeathed, they are to be considered as additional, 
 unless the plain effect of the separate instruments is over- 
 ruled or impaired by the true construction of the instru- 
 ments or presumption of law (p). 
 
 PhilUm. 416 (1817), and that of fo?jW(»M can be expressed or gathered 
 
 Sir H. J. Fust in Thorn r. BooJce, from anything except the testmnen- 
 
 2 Curt. 799 (1841). tary instrument duly executed and 
 
 (o) This is the last point men- attested as required by law ; and 
 
 tioned in the head note to Eooley v. that a testamentary iTiiention once 
 
 Satton, 2 L. C. Eq. 346. so expressed cannot be deemed or 
 
 ip) Wilson Y. 0'Zean/,citedante, taken to have been altered by any 
 
 n. (Z). "The law has provided codicil unless such change of inten- 
 
 that no testator's testamentary in- tion is manifested by the same 
 
490 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Where legacies 
 are not given 
 'iesr. 
 
 General rule 
 that gifts to 
 the same per- 
 sons are to be 
 construed as 
 cwrmdatwe. 
 
 Testator giving 
 two legacies to 
 the same 
 charity. 
 
 Mortmain 
 Act. 
 
 If, however, the legacies be not given si/mpliciter, but 
 the motive of the gift is expressed to the same effect in 
 both or all of the writings, a presumption arises that the 
 testator meant the gifts to be substitutionary. This pre- 
 sumption, however, can arise only where the double coin- 
 cidence occurs of the same motive and the same sum in 
 both instruments ; and in the case of Wilson v. O'Leary, 
 could not therefore have arisen at all (q). 
 
 The Lord Justice James, in affirming the decision of 
 the Vice Chancellor in the above case, remarked that, 
 " where there is a positive rule of construction, such as 
 exists in these cases, which says that gifts by two testa- 
 mentary instru/tnents to the same person are to he con- 
 strued cumulatively, that plain rule of law and construc- 
 tion is not to be frittered away by a mere balance of 
 probabilities. I am therefore of opinion that the gifts 
 ought to be construed as cumulative " (r). 
 
 It has happened that a very liberal testator, after be- 
 queathing one legacy to a charitable institution, has by a 
 subsequent paper also wished to add thereto another gift. 
 Now any gift by Will to a charity which is to be paid 
 from any real estate, or from any interest, charge, or incum- 
 brance thereon, is by the statute 9 G. 2, c. 36, void as being 
 within the law against Mortmain (s), and as such is the 
 case, a testator wishing to bequeath money to a charitable 
 institution should take care to specify that the gift is to come 
 out of his pure personalty. When then a testator by one 
 
 statutory evidence. " — Per Lord Jus- 
 tice James. But the Court may 
 require proof of certain facts and 
 circumstances, a knowledge of 
 which would by giving it the same 
 hnowledge which the testator him- 
 self possessed, enable it the better 
 to reach his meaning. Guy v. 
 Sharpe, 1 Myl. & K. 589 ; judgt. of 
 Lord Brougham, C. 
 
 (q) Judgment of Vioe-Chancellor 
 Bacon. 
 
 (r) See also the important and 
 similar case of Sidsse v. Lowther, 2 
 Hare, 424 ; L. J. 12 Ch. 315, de- 
 cided by Lord Lyndhurst, C, in 
 1843. 
 
 (s) Except where the gift is to 
 the Universities of Oxford and Cam- 
 bridge, or to the schools of Eton, 
 Winchester, and Westminster. For 
 a history of the Statutes of Mort- 
 main, see 2 Black. Comm. 268 — 
 274. See also post. 
 
OF BXECUTOKS AND ADMINISTKATOES. 491 
 
 codicil gives a legacy, say of £1000, to a hospital out of 
 such species of property, and then by another codicil gives 
 to the same charity £500 more, circumstances might cause 
 a question to arise as to whether the second gift was pay- 
 able from the same source as the former. This question 
 did actually arise in the case of Johnstone v. Earl of 
 Ha/rrowhy [t), and under circumstances similar to those we 
 have supposed. Vice-Chancellor Wood held that the second 
 legacy was not meant to come from the same fund as the 
 first ; but Lord Chancellor Campbell reversed his Honour's 
 decision, and pronounced the .bequest payable out of the 
 pure personalty alone. 
 
 It is seen from the foregoing statements that a legacy Substituted 
 which is not construed as cumulative, is to be considered ^^sacy. 
 as substituted, and it may also be remarked in conclusion 
 that the doctrine of ejusdem generis (u), may enter into Fjusdem 
 the consideration of questions as to whether legacies are ^™^'^' 
 repeated or are merely substituted. Thus, "if legacies 
 given by Will and codicil to the same persons, when 
 given simpUciter, and whether of equal or unequal 
 amount are, primd facie to be considered accumulative, 
 a fortiori they will be so, when they are not ejusdem 
 generis ; as where one is given as a general legacy, the 
 other by way of annuity : or, where one is vested, or another 
 depending upon a contingency {x) : such variation in the 
 nature of the gifts, furnishes an additional degree of 
 evidence in the testator to bestow a two-fold benefit" {y). 
 
 Lastly, if an original legacy is expressed to be given Substituted or 
 out of a certain specified property, a substituted legacy will oumuiatiTe 
 also be primd facie considered as intended to come out ject generally 
 of the same. Consequently, if the fund fails as to the dentTom'e 
 former, it will also fail as to the latter, for the rule is — sub- original gift. 
 
 (t) 1 De G. F. & J. 183 ; 39 L. J. lield substitutional, anotlier cumu- 
 
 145, 147. lative. As to the distinction be- 
 
 (u) See ante, p. 144, et seq. tweeu an original gift and one by 
 
 (x) See Thompson v. Teuhn, substitution, read the beautifully 
 
 22 L. J. Ch. 243. reasoned judgment of Kindersley, 
 
 {y) 2 Eop. Leg. 1004, and see V.-C. in Lawphier y. Buck, 2 Dr. 
 
 the case of Tuckey v. Henderson, & S. 484 ; 34 L. J. Oh. 656. 
 33 Beav. 174, where one gift was 
 
492 
 
 WILLS OP PERSONAL PKOPERTY. 
 
 Implied 
 icies. 
 
 implication" 
 defined. 
 
 Legitimate and 
 
 illegitimate 
 
 children. 
 
 ject to the intention of the testator as gathered from the 
 context of the papers — that both substituted and cumu- 
 lative legacies are attended with the same incidents as 
 that or those originally given. An excellent illustration 
 of the application of this general rule is found in the 
 case cited below (z). There, A., by his Will, gave to B. an 
 annuity of £100 a year for her separate use, and by a 
 codicil, made four years after, gave her m addition, £300. 
 The question was whether the second gift was to her 
 separate use, and Parker, V.-C, decided that it was, because 
 as a cumulative gift it was subject to aU the incidents of 
 the original legacy {a). 
 
 (F) Implied Legacies. These are such as are given 
 by necessary implication from the language em- 
 ployed by a testator. "With regard to that 
 expression ' necessary implication,' " says Lord 
 Eldon, in Wilkinson v. AdaTn (b), " I will repeat 
 what I have before stated from a note of Lord 
 Hardwicke's, that in construing a Will conjecture 
 must not be taken for implication ; but ' necessary 
 implication ' means, not natural necessity, but so 
 strong a probability of intention, that an intention 
 contrary to that, which is imputed to the testator, 
 cannot be supposed." 
 Questions as to whether legacies are to be implied, 
 sometimes occur where bequests are made to children, and 
 
 (z) Warwick v. HawTcins, 5 De 
 G. & S. 481 ; 21 L. J. Ch. 796. 
 
 (a) See also 1 Eop. Leg. 875, et 
 seq. ; 2 Wms. Exors. pt. 3, bk. 3, 
 ch. 2, § 7, 1295, and especially 
 Sooley V. SaMon ; the leading case 
 on the subjeotof cumulative legacies, 
 2 L. C. Eq_. 346, 363, and as to the 
 nature of the extrinsic evidence ad- 
 missible before any tribunal in Will 
 cases, Gha/rter v. Charter, L. E. 
 2 P. & D. 315 ; 43 L. J. 73. 
 
 (J) 1 Ves. & Bea. 466 ; affirmed 
 
 in H. L. 12 Price, 470 ; cited in 
 1 Rop. Leg. 84, and see Id. 724. 
 "It is agreeable to us to find so 
 clear a Ale laid down as to what is 
 meant by 'necessary implication,' 
 as that which we find in Lord 
 Eldon's judgment in Wilkinsim v. 
 Adam . . . ." Per Lord Justice 
 James in Crook v. Hill, L. E. 6 
 Ch. 311 ; 40 L. J. Ch. 216 ; affirmed 
 as Hill v. Crook, L. E. 6 H. L. 
 265 ; 42 L. J. Ch. 702. 
 
OF EXECUTORS AND ADMINISTRATORS. 493 
 
 the testator lias illegitimate offspring. (See ante, p. 75, 
 note.) This was indeed the point of the case from the 
 judgment in which the foregoing quotation is taken, but 
 as a matter of fact there the testator's provision was 
 almost too clearly expressed for any real doubt to arise. 
 
 But cases may occur where the intention is not so easily Cases where 
 arrived at, as where a testator bequeathed a gift to T., his ^ to"whether^ 
 illegitimate son, and then divided the proceeds of his resid- illegitimate 
 uary estate into seven parts, to be shared between his wife included in a 
 for life, and all his six children except T. Of these, it I'^'i^est. 
 appeared one daughter was illegitimate, and the question 
 was whether she was entitled to share with those children 
 who were legitimate. It was argued against such claim 
 that an illegitimate child could not be comprised in the 
 same class with legitimate children, unless expressly in- 
 cluded by the testator a& persona designata. V.-C. Giffard Illegitimate 
 held this to be the true rule of law in such cases, and "^t 1° *^^^ 
 
 ' must be peT' 
 
 on that principle, adjudged the illegitimate daughter to sona desig- 
 be excluded from participating in the gift (c). 
 
 The true rule of construction in cases of this character Crook v. ffUl. 
 was explicitly stated by the Lords Justices James and 
 Mellish, in Crook v. Hill, just referred to. The former 
 learned judge there says : — " The rules of law and of con- 
 struction applicable under these circumstances are, first, 
 that a gift to children means a gift to the lawful issue of 
 a lawful marriage, unless (which is the second rule) there 
 be something which in express terms, or by what is called 
 ' necessary implication,' shows that the gift is to illegiti- 
 mate children conjointly with another class of legitimate 
 children." 
 
 To the same effect are the remarks of Lord Justice 
 
 (c) In re Wells's Estate, L. E. 239 ; 43 L. J. C!li. 84, and cases in 
 
 6 Eq. 599 ; 37 L. J. Ch. 553, de- u. {d), next page. The word 
 
 cided on the authority of Cwrtvfright ' children ' always means primd 
 
 v. Vawdry, 5 Ves. 530, and WU- facie legitimate children, just as jf 
 
 V. Adam, supra, u. (6). the very word legitimate had heen 
 
 Wliere an illegitimate child was mentioned tefore it. Dorin r. 
 
 held to be persona designata, see Dorm, next page, n. (d). 
 In re Brown's Trusts, L. E. 16 Eq. 
 
WILLS OF PEESONAL PROPERTY. 
 
 Mellish : — " I apprehend that it is clearly established, at 
 any rate, by the modem decisions, that the word ' children' 
 may include a class of both legitimate and illegitimate 
 children, provided you find in the Will what is described 
 as a ' necessary implication ' that the illegitimate children 
 are to be included .... It appears to me by the autho- 
 rities, to be clearly decided that there may be a class 
 including both legitimate and illegitimate children, pro- 
 vided, as has generally been said, you can find sufficient 
 in the Will, that you can see perfectly, plainly, and clearly 
 — ^because that is what it means — without any reasonable 
 doubt, that it was the intention of the testator that they 
 should not be included " (d). 
 Implied gifts Gifts may be implied under a variety of circumstances, 
 circumstances, ^'id t^e following case forms an excellent example of im- 
 plication. A testatrix bequeathed a sum in trust to pay 
 the half-yearly dividends thereof to two nieces, the pay- 
 meat to be continued to their children till they came to 
 the age of twenty-one. It appeared that all the children 
 of one of these nieces, who was dead, had actually attained 
 the age prescribed, and the Court held that they were 
 impliedly entitled absolutely to the moiety given to their 
 mother for her life (e). 
 Wife taking by The following is a case of a wife taking by impUcation : 
 implio^ion — ^ testator gave to trustees for his wife's benefit and for 
 
 band's Will. 
 
 (d) See also Sarin y, Darin, a banos mares. See also In re Ayles' 
 
 very recent case in the House of Trusts, L. E. 1 Oh. Div. (K S.)282; 
 
 Lords, L. E. 7 H. L. 568; 45 L. J. 45 L. J. Oh. 223. For the case of an 
 
 Oh. (H. h.) 652. Where illegiti- 4Hegifo'7?mfe child taking, in order to 
 
 mate children were held to be suffi- carry out a testator's intention, see 
 
 ciently designated, see Lepine v. In re Brawn's Trust, ante, n. (c). 
 
 Beans, L. E. 10 Eq. 160 ; 39 L. J. (e) Wilks v. Williams, 2 Jo. & 
 
 Ch. 847 ; Occlestan v. Fullalove, H. 125 ; see also In re B. Smith's 
 
 L. E. 9 Ch. 147 ; 43 L. J. Ch. Trusts, L. E. 1 Eq. 79 ; Ewmphreys 
 
 207, reversing the decision (Lord v. Humphreys, L. E. 4 Eq. 475 ; 
 
 .. . Selbome, Sm), of Wiokens, V.-C, Jm r« .BZctfcc's rntsi, L. E. 3 Eq. 799 ; 
 
 Wmfor°futoe ^^ disapproving of HowaHh v. 36 L. J. Ch. 747. For a case of 
 
 illegitimate Mills, L. E. 2 Eq. 389. Occlestan imperfect enumeration of personal 
 
 children is v. Fullalove appears to decide also property, in consequence of which 
 
 valid. that a provision by WiU for future the whole passed absolutely, see 
 
 illegitimate children, is not contra Dean v. Gibson, L. R. 3 Eq. 713. 
 
OF EXECUTORS AND ADMINISTRATORS. 495 
 
 the children after her death, all his personalty, except 
 £500 payable under a policy of insurance, " to which my 
 said wife is absolutely entitled under the said policy." 
 As a matter of fact, she was not so entitled to the policy, 
 but the Court considered her to be so under the circum- 
 stances, and by necessary implication (/). 
 
 An erroneous recital in a Will or codicil, that the Erroneoua 
 testator has given something, which he has not given, will codicil -will not 
 not of itself create a gift by implication. This was decided '^^^^^ ^ ^y 
 
 1 p m • I'll TVT-n implication. 
 
 m the foUowmg case : — A testatrix, by her Will, gave a 
 legacy of £1000 among such of the children of M. as 
 should attain twenty-one. By a codicil she recited that 
 she had by her Will given £1000- to F., a child of M., 
 giving also a direction as to the payment of the said 
 legacy. It was held that the recital was a mistake, and 
 that F. took only with the other children of M. (g). 
 
 (G) Inconsistent or Eepugnant Legacies. The follow- Inconsistent or 
 ing case will illustrate what is meant by incon- wm^^" 
 sistent bequests. A testator gave all his house- 
 hold furniture, money, goods, chattels, and effects 
 to his wife absolutely. By a subsequent bequest 
 in the same Will, he gave her the residue of 
 his personal estate for life, and on her death to 
 two persons In equal shares absolutely. Here 
 then were two gifts clearly inconsistent with each 
 other, and the question was which of them was 
 to be limited. " It is evident," said Lord Justice 
 Turner, " that the bequest of the residue for life 
 admits of no limit, while the absolute gift to the 
 wife does not admit of a limit if restrained by 
 locality," and it was held that the first bequest 
 was limited in favour of the second (h). 
 The following extract from the last edition, by Mr. 
 
 (/) Sail V. Lietch, L. E. 9 Eq. 2 Jo. & H. 594 
 
 376. (h) Smith v. Davis, 35 L. J. 
 
 (g) Mackenzie v. BracUmry, 34 L. Oh. 874. 
 J. Ch. 627 ; see also In re 
 
496 
 
 WILLS OF PEESOJTAL PROPERTY. 
 
 Rule of con- 
 struing re- 
 pugnant 
 clauses. 
 
 Where clauses 
 are almost 
 incompre- 
 hensible. 
 
 Besidnaty 
 legacy. 
 
 Dunning, of Hayes and Jarman on "Forms of Wills," 
 contains an admirable summary of the rules of law on 
 this subject : — 
 
 " In the construction of Wills, it is a settled rale that 
 ■where two clauses or gifts are contradictory and incon- 
 sistent, so that they cannot possibly stand together, that 
 clause or gift which comes last, which is nearest in position 
 to the end of the Will, shall prevail ; for the last words 
 are considered to express the latest intention of the 
 testator. But this rule is subject, in its application, to the 
 doctrine that the testator's intent is to be gathered from 
 the general tenour of the Will ; so that a clause, which 
 cannot be reconciled with the general scheme of the Will, 
 will be rejected, whatever the local position it may happen 
 to occupy in the instrument. And the rule is never ap- 
 plied except where a reconciliation of the clauses or gifts 
 is impossible : any construction of the contradictoiy 
 clauses which will render both effective is preferred to the 
 entire sacrifice of the earlier clause " (i). 
 
 Sometimes the clauses in a Will are so peculiar as to be 
 almost incomprehensible, and of course where such is the 
 case, and nothing can be found in the instrument for their 
 exposition, the bequest affected to be given must fail Qe), 
 but no words can be expunged from a Will unless it is 
 clear that they were inserted by mistake, and of course as 
 a Will itself is the only guide for interpretation and con- 
 struction of its particular phraseology, extrinsic evidence 
 is inadmissible to explain any intention of the testator 
 as to repugnant clauses occurring in it (Z). 
 
 (E) Finally, we have to mention a residuary legacy, or 
 that, or part of that, which is left after all the other 
 legacies and debts, and liabilities of a testator 
 are satisfied. (For a description of this kind of 
 
 (t) Hayes and Jannau's Fcynns of Biggs, 2 Taunt. 109. 
 
 Wills, 439 n., 8th ed. . (I) See Charter v. Ghwrter, L. R. 
 
 (h) See two cases cited in 2 Rop. 2 P. & D. 315 ; 7 E. & I. App. 364; 
 
 Leg. 1472, 3, Sims v. Doughty, 5 43 L. J. P. & M. 73 (H. L.).. 
 Ves. 243 ; Doe dem. Leicester v. 
 
OF BXECUTORS AND ADMINISTRATORS. 497 
 
 legacy, the reader is recommended to peruse the 
 celebrated judgment of Sir W. Grant, M.R., in 
 Cambridge v. Rous, 8 Ves. 25. 
 Before the statute 1 W. 4, c. 40, an executor was Executor not 
 primd facie entitled to the residue of his testator's perso- ™aispost°d 
 nalty in all cases where that was not specifically disposed residue, 
 of, but the statute in question declares that executors 
 under such circumstances are no longer to enjoy the pri- 
 vilege in question, but are to be accounted as trustees for but is a 
 the testator's next of kin (m). ^^^ ^^^ 
 
 The above enactment has recently received a very full Reeent case of 
 
 consideration in the House of Lords, at the hands of the ^'®««'»» ^^■ 
 
 Arlcle. 
 
 present Lord Chancellor (Lord Cairns), and Lords Chelms- 
 ford and Hatherley {n). 
 
 Their lordships held in the case to which we allude, Trae nature 
 that the statute 1 W. 4, c. 40, introduced no new rule for "* i„^' *' 
 
 . . c. 40. 
 
 the construction of Wills, its effect being that an executor 
 should no longer take the residue by implication of law j 
 therefore, that where there is an express gift of such to an 
 executor, the Act does not apply. Also that whether the 
 executor or trustee under a Will is to take in that capa- 
 city only, or is to take the beneficial interest, is dependent 
 upen the testator's mtention, to be collected from the 
 whole of the Will (o). 
 
 It is often a question both in the Chancery and Pro- 
 bate Divisions of the High Court of Justice, whether a 
 clause in a Will alleged to be sufficient to pass a tes- 
 
 (m) See Mapp v. ElcocTc, 3 H. L. entitled to nothing teneficiaUy. 
 
 492 ; 18 L. J. Cli. 217 ; Love v. Se^ also the more recent case of 
 
 Gam, 8 Beav. 472 ; JuUr v. JuUr, Bird v. Hmris, L. E. 9 Eq. 204 ; 
 
 29 Beav. 34 ; 30 L. J. Ch. 142 ; 39 L. J. Ch. 204. 
 Saltmarsh v. Barrett, 3 De G. F. & (n) In the case of Williams v. 
 
 J. 279 ; 30 L. J. Ch. 853 (1860) ; Arkle, L. E. 7 E. & I. App. 606 ; 
 
 Bwrrsv. Fewkes, 2 Hem. & M. 60 ; 45 L. J. Ch. 590 (1876). 
 33 L. J. Ch. 484, where the residue (o) See, as an instance of an exe- 
 
 consisted of realty and personalty, cutortaking the residue beneficially, 
 
 and it was held that the heir at ffarrison v. Harrison, 2 Hem. & M. 
 
 law took by virtue of a resulting 237 ; 33 L. J. Ch. 647. 
 trust, and that the executor was 
 
498 WILLS OF PERSONAL PEOPERTY. 
 
 tator's residue is really so. No particular form of 
 words is required, but any expressions from which the 
 intention to give it may fairly be gathered, will suflSce 
 for the purpose ; the context, however, will control the 
 construction of all words, even if " residue " itself be 
 employed. Thus, " money left unemployed " {p), " what- 
 ever remains of money " {q), " all my other property " (r), 
 "all -other chattels'' have been held to pass the general 
 residue (s). The following is a peculiar case : the 
 testator left a Will with no executor, and after giving 
 A., the only legatee named, a certain specific bequest, 
 continued, "also any money that may result from the 
 sale of my effects, after paying the few small debts that 
 I owe." Lord Penzance, on being applied to for a grant of 
 administration cum testwmento a/nnexo to A. as residuary 
 legatee, directed the next of kin to be cited, that is to say, 
 declared an intestacy as to this property. His lordship said : 
 " The word ' effects ' standing alone will pass the residuary 
 estate (i). The testator is here pointing to something that 
 is to come from the operation of the sale, and I do not think 
 I can hold that the words of the Will pass the residue." 
 Eight of From the description of the right of a residuary legatee 
 
 legator^ given in Williams on Executors, namely, that such 
 
 person is entitled to whatever may fall into the residue 
 after the Will is made, either by lapse, invalid disposition, 
 or other accident, or anything that turns out not to be 
 
 (p) Legge v. Asgill, 1 Turn. & sisting of navigation shares (realty) 
 
 Euss. 265, n. (a). convei-ted into personalty and so 
 
 (q) Dowson v. Gaskom, 2 Keen, passing under those words ; also the 
 
 14. recent case of Hodgson v. Jex, where 
 
 (r) Lloyd v. Lloyd, L. E. 7 Eq. the general personal estate passed 
 
 458. under the word "effects;" L. E. 
 
 (s) Inthe goods of Sharman, L. 1 Ch.Div.,Tol.IL (]Sr.S.),122;45L. 
 
 E. 1 P. & D. 661. " All the rest " J. Ch. 388 ; Judgt. of Sir G. Jessell, 
 
 may carry residuary realty. Attree M.E. ; and Court v. Bucklcund, L. 
 
 V. Attree, L. E. 11 Eq. 280 ; 40 L. E. 1 Ch. Div. Vol. I. 606 ; 45 L. J. 
 
 J. Ch. 192. Ch. 214, where the proceeds of sale 
 
 (t) See Cadmanv. Cadman, L. E. of realty were included in the ulti- 
 
 13 Eq. 470 ; 41 L. J. Ch. 468, as to mate trust of personal residue, 
 "personal estate and effects," con- 
 
OF EXECUTORS ANB ADMINISTRATORS. 499 
 
 disposed of (u) ; it might appear at first sight, at least 
 from a common sense point of view, difficult to see why 
 A. in the above case was denied administration as resi- 
 duary legatee. Then, again, the testator's intention was 
 tolerably clear, and this we know should be the primary 
 consideration in construing a Will. From a legal point Explanation of 
 of view, however, there can be no doubt that Lord Pen- ^^^ *^°^® 
 
 ' ' case. 
 
 zance^as right in the above decision (w), but such cases 
 may be said to illustrate what has been termed "the 
 glorious uncertainty of the law," or more accurately, the 
 uncertainty of the operation of some of its rules (x). 
 
 Larner v. Lamer (y) is a striking instance of the in- intention of 
 tention of a testator being subordinated to the rigid *^s*f'*<"^ 
 
 ° ° postponed to 
 
 action of a rule of construction. There a testator, after operation of a 
 directing payment of his debts, &c., gave to his wife for ^ruotion!°" 
 life " the interest of all sums of money I may die pos- 
 sessed of, subject to such agreements, if any, which I may 
 enter into in iny lifetime ; and after her decease, I do 
 give all such interest moTiey unto my daughter " for life, 
 and after her decease to her children, &c., &c. The tes- 
 tator at his death was possessed of cash, furniture, farming 
 stock, and a leasehold farm, held by him at a yearly 
 tenancy. The executors paid the testator's debts out of 
 the cash, and the children instituted a suit to have the 
 tnists of the Will carried into effect, and the question for 
 the Court of Chancery was whether the cash alone passed 
 to the wife, or whether all residue of the property was 
 included in the bequest set forth above. The Vice-Chan- Judgment in 
 
 (m) Pt. 3, bk. 3, ch. V. § 1, sonalty, &c. ; " also the judgment of 
 where is cited a portion of the cele- Lord Cottenham, C, in Eaaivm v. 
 brated judgment of Sir "W. Grant, AppUford, 5 Myl. & Cr. 56 ; 10 
 M.R., in Cambridge y. Rous, 8 L. J. Ch. 81, mentioned ^os<, p. ."iOl 
 Ves. 25 ; see also Leake v. Bobim- {x) Read also the concluding per- 
 son., 2 Mer. 363. tion of the judgt. of Knight-Bruce, 
 
 (w) Read the judgment of Sir T. V.-C, in Davies v. Thorns, 3 De 
 
 Plumer, in Ommaney y. Butcher, G. & S. 347; 18 L. J. Ch. 212, 
 
 Turn. & Russ. 260 (1822-4), where quoted ^osi!, p. 535, n. (u). 
 
 the testator in forming his bequest {y) 3 Drewry, 704 ; 26 L. J. Ch. 
 
 "was adverting to that which he 668. 
 directed to be converted into per- 
 
 K K 2 
 
500 
 
 WILLS OF PERSONAL PROPERTY. 
 
 La/rne,r v. 
 Lwmer. 
 
 Technical rule 
 in cases where 
 gift of money 
 alleged to give 
 residue. 
 
 Meaning 
 of "Money."' 
 
 cellor Kindersley, one of tlie most learned and acute of 
 modern Equity judges, commenced his judgment thus : — 
 " I cannot help entertaining an impression that the tes- 
 tator did mean to make a bequest of his property gene- 
 rally ; at the same time it is only a matter of conjecture." 
 His Honour subsequently says, "but there is nothing in 
 my mind to lead to a fair inference that the testator 
 meant to include his general property. I may observe, 
 indeed, that all the language which he has used appears 
 to be adverse to a general gift." Now, if this were so, 
 how came the learned judge to entertain the impression 
 first announced, that the testator did mean to bequeath 
 his property generally ? But his Honour gave other reasons 
 of a more technical character for his decision — ^which was 
 against the wife's claim — and these we will now notice. " I 
 apprehend," said the Vice-Chancellor, " that it is a rule 
 that, in the absence of anything to give a different inter- 
 pretation to the word ' money,' aU that can pass under 
 that term is money, and nothing else ; and that if I can 
 find nothing to lead to the conclusion that the testator 
 meant to include his general residuary property, I must 
 hold that nothing passed but the cash .... There may 
 be cases where you may find other circumstances in the 
 Will leading to the conclusion that the testator used the 
 word ' money ' not in a primary but secondary and less 
 appropriate sense, so as to include other property (z). The 
 only passage I can discover in this Will which can be 
 laid hold of to show that ' money ' is not to be confined 
 to money alone, is that in which he says, ' subject to such 
 agreements, if any, which I may enter into in my lifetime.' 
 Now, he might possibly have entered into an agreement 
 with his banker that the money should not be drawn out 
 for a certain time, and should bear interest ; but there is 
 nothing in my mind to lead to a fair inference that the 
 
 (z) See Waite v. Coomles, 5 De 
 G. & Sm. 676 ; 21 L. J. Ch. 314, in 
 V. Purcell, 2 Sm. & G. 
 
 284 ; 23 L. J. Ch. 423 ; 7 De G. 
 M. & G. 65 ; 24 L. J. Ch. 522, and 
 Slocks V. Barri, Johns. 54. 
 
OP EXECUTORS AND ADMINISTRATORS. 501 
 
 testator meant to include his general property ... I must 
 therefore come to the conclusion that there is a specific 
 gift of the money, and an intestacy as to any other pro- 
 perty." It miist with all deference be said, that the above 
 judgment looks a little contradictory, and the learned 
 judge also has resort to what he begins by deprecating, 
 namely, conjecture ; but, nevertheless, the case of Larner 
 V. Larner is one of authority on the point it decided, 
 namely, that the word " money " occui-ring in a Will 
 primd facie means merely money, but that the context 
 may control such primd facie signification. 
 
 Upon this rigid observance of -what are called canons Remarks on 
 or rules of construction in all cases which seem to possess mhiatearaSi- 
 a resemblance to each other, we venture to take the cation of rules 
 liberty of observing that such practice must not only tion. 
 lead to confusion, but also to flagrant injustice. Lord 
 O'Hagan, in delivering his judgment in the House of 
 Lords in 1875, on the appeal from the Lords Justices in 
 Ingram v. Soutten (a), thus condemns the tendency to 
 increase the number of the rules above alluded to : — 
 "It does appear to me not desirable that we should 
 multiply those hard and fast rules which so often in 
 our Courts paralyze the intention of testators. It appears 
 to me that although there may be certain cases in which 
 such overmastering and inflexible rules have been 
 established for such a length of time and upon such 
 high authority that they cannot now be relaxed or de- 
 parted from, it is undesirable that there should be a 
 multiplication of such overmastering and inflexible rules, 
 which by their character prevent the real intention of a 
 testator from being carried out, that intention having to 
 be considered .... by every Court in construing a Will. 
 
 .... Every case must be taken with reference to its own Eact case 
 
 should Vie 
 
 (a) L. R. 7 H. L. 408 ; 44 h. J. 21 L. J. Ch. 324, was disapproved by 
 
 Ch. 55 ; reported as In re Eeath- the House of Lords, though adopted 
 
 cote^s Trusts, 43 L. J. Ch. 259, post, by the Lords Justices, whose judg- 
 
 548. The "fourth rule "laid down in ment was reversed, and that of • 
 
 Edwards v. Edwards, 15 Beav. 357 ; Malins, V.-C, supported. 
 
502 
 
 WILLS OF PEESONAL PKOPEETY. 
 
 determined by 
 its own facts. 
 
 "Residue '' 
 applicable to 
 
 Bight of 
 pecuniary 
 legatee as 
 against residu- 
 ary devisee. 
 
 Meaning of 
 " maJTsballing 
 
 assets." 
 
 peculiar circumstances." With this opinion of Lord 
 O'Hagan, Lord Selborne expressly concurred ; and again, 
 the Lord Chancellor (Lord Cairns) says, " I am unahle to 
 accede to a rule, the effect of which would be to alter the 
 natural meaning of words." From such views stated by 
 such men, we are able to perceive a decided movement, 
 at any rate, towards breaking in upon — though, of course, 
 only where justice requires this to be done — the custom 
 of indiscriminately deferring to those hard and fast rules 
 of construction, which have so often been applied, regard- 
 less alike of the natural meaning of words and the true 
 intention of the testator. 
 
 The terms "residue" and "residuary" are now applicable 
 alike to devises and devisees, and to legacies and legatees; 
 but this as to devises is, comparatively and technically 
 speaking, a modern feature in our law (6). A residuary 
 devise of realty is specific in its nature, and the 
 doctrine of law in this respect has not been altered by 
 the Wills Act, 1838, s. 24. Consequently, a general 
 pecuniary legatee has no right to marshal the assets 
 of a testator against a residuary devisee (6). By mar- 
 shalling assets is meant "such an arranging of the 
 different funds under administration, so that they may, as 
 far as possible without injustice, be applied in satisfying 
 all the various claims, notwithstanding certain parties are 
 entitled to prior satisfaction out of some one or more 
 funds. So that where there are two or more funds, and 
 several claimants, some of whom can resort to all or many 
 of such funds, and others can only resort to one. Equity 
 either compels the former to claim against the fund, 
 which the latter cannot, so far as it will extend, or com- 
 
 (6) See tbe judgment of Lord 
 CroAVMrfh, in Earl ef Sective v. 
 Hodgson, or Hodgson v. Uarl ofBec- 
 twe, 10 H. L. 666 ; 33 L. J. 601 ; 
 affirming 1 Hem. & M. 376 ; 32 L. 
 J. Ch. 489; Hensman v. Fryer, 
 L. R. 3 Ch. 420 ; 37 L. J. Ch. 97, 
 Judgmea oi Lord Chelmsford ; but 
 
 see Farqulucrson v. Flayer, L. £. 1 
 Ch. D. pt. 3 (N. S.) 109; 45 L J. 
 Ch. 750, where it was held that 
 general legatees could not require 
 the devisees of real estate and 
 specific legatees to contribute 
 towards the payment of debts. 
 
OF EXEOUTOES AND ADMINISTRATOES. 503 
 
 pensates the latter out of the fund in proportion to what 
 the former has unnecesaarily taken from that which formed 
 the only means of payment to the latter " (a). 
 
 But the dictv/m in Hensman v. Fryer that a residuary Residuary 
 devisee is- not entitled' to be in abetter position than a asagah^t"^ 
 
 pecuniary legatee, so that where the personal assets are poniary 
 insufficient for the payment of the testator's debts, thp 
 two must abate rateably, has been dissented from by 
 Judges of first instance (d). 
 
 Unless a contrary intention shall appear on the face of Lapsed devise 
 a Will, such real estate or interest therein as shall be S mto*^ 
 comprised, or intended to be comprised, in any devise in residue, 
 sach Will contained, which shall fail or be void by reason 
 of the death of the devisee in the lifetime of the testator, 
 or by reason of such devise being contrary to law, or 
 otherwise incapable of taking effect, shall be included in 
 the residuary devise (if any) contained in such Will (e). 
 
 By section 24 of the Wills Act, 1838, every valid Will AU valid Wills 
 is to speak and take effect with reference to the realty ^eath of*"" 
 and personalty comprised in it, from the death of the te'tator as to 
 testator; accordingly, assuming a gift of the residue of per- comprised in 
 sonalty to be coeteris paribus a good one, the residuary ^'^■ 
 legatee will be entitled to every other gift in the Will 
 which has failed by lapse, invalid disposition, no dispo- 
 sition at all, or other accident as before stated. The General 
 principle to be deduced from the decided cases, is that force of a 
 the general object of a residuary bequest is to be looked "residuary gift. 
 at, and this being to prevent an intestacy, it should com- 
 prise everything that by any means can be brought 
 within the residue, rather than that the testator should 
 die intestate. "The general rule," says Lord Cotten- 
 
 (c) Roberts on Equity, 145, 2nd able bequest will not be marshalled, 
 
 edit., citing Story Eq. Jur. 558— Id. 1720. 
 
 563. But see Aldrich v. Cooper, (d) Collins v. Lewis, L. R. 8 Eq. 
 
 and the notes thereto, 2 L. C. Eq. 708 ; Dugdale y. Dugdale, L. R. 
 
 78, also 2 Wms. Exors. pt. 4, bk. 1, 13 Eq. 234 ; 41 L. J. Ch. 565, and 
 
 ch. 2, and the whole of § 2, 1713 et Farquharson v. Flayer, supra, n. (6). 
 
 seqq. Assets in favour of a charit- (e) 1 Vict. c. 26, s. 25. ^ 
 
504 
 
 WILLS OF PBESONAL PEOPEETY. 
 
 Effect should 
 be given to 
 testator's 
 intention, 
 which is 
 primdfcuM 
 to prevent 
 intestacy. 
 
 Tme meaning 
 
 ham, C, va. Easum v. AfpUford (J), "that a residuary- 
 clause passes a lapsed legacy, arises from the circumstance, 
 that the residuary clause is deemed and understood to 
 comprise everything not before given and bequeathed by 
 the Will. The Court gives effect to the general intention 
 of a testator ; but where the general presumption in favour 
 of the residuai-y legatee is negatived, the rule does not 
 apply. In the case of a gift to tenants in common, if one 
 dies, the survivor does not take the whole (g). The resi- 
 duary legatee, in order to take the whole, must be a 
 general legatee : for if the testator confines the residue to 
 what may remain after certain deductions, the residuary 
 legatee becomes a specific legatee." 
 
 The distinction between an executory devise and an 
 executory bequest of residue is thus pointed out by Lord 
 Westbury, C. Qi) :— 
 
 " It is an indisputable rule of law that if a freehold 
 estate be given by way of executory devise, there is no 
 disposition of the property until that estate becomes 
 vested, and consequently in the meantime the freehold 
 property descends to the heir-at-law. Now this is the 
 consequence of the great principle or rule of law, that 
 the freehold cannot remain in abeyance, but that 
 rule has no application to bequests of personal estate. 
 Consequently, if by a Will, the whole of the personal 
 estate, or the residue of the personal estate, be the 
 subject of an executory bequest, the income of such 
 personal estate follows the principal as accessory, and 
 
 (/) 5 Myl. & Cr. 56; 10 L. J. Ch. 
 81, affirming 10 Sim. 274, cited by 
 SirW. P. Wood, V.-C, in the im- 
 portant case of Bertiard v. Min- 
 shull, Johns. 276; 28 L. J. Ch. 
 649, which read. 
 
 (g) Camtridge T. Sous, 8 Yes. 
 25 ; The Attorney- General v. John- 
 stem, Amb. 580. The rule as to 
 joint tenants is, however, different, 
 for the shares oi joint tenants, dying 
 before the severance of the tenancy. 
 
 survive to the others. See 2 Wms. 
 Exors. pt. 3, bk. 3, oh. 5, § 1, 1461. 
 For further information on the sub- 
 ject of residuary legacies, see that 
 work. Vol. II. ch. 6, 1454 et seqq.; 
 also 2 Kop. Leg. ch. 24,1669 et seqq. 
 (h) Earl of Bedim v. Hodgson, 
 or Hodgson v. Earl of Bective, 10 
 H. L. Cas. 656 ; 33 L. J. Ch. 601 ; 
 affirming 1 Hem. & M. 376 ; 32 
 L. J. Ch. 489. 
 
OF EXECUTORS ANp ADMINISTRATORS. 505 
 
 must during the period which the law allows for accumu- 
 lation (i), be accumulated an,d added to the principal. 
 Subject to the prohibition against accumulation, the 
 ownership, both of the principal and interest of the personal 
 estate so bequeathed may remain in suspense until the 
 executory bequest takes effect, provided it be so given as 
 that it must vest within the time allowed by the rule 
 against perpetuities " (i). 
 
 It sometimes happens that a testator in his Will makes Misdescnption 
 a mistake in describing the person or persons whom he "* legatee, 
 may wish to benefit. Such was the state of things in the 
 case of Brake v. Drake {k). There the testator devised a Draix v. 
 house to " my sister, M. F. T. D." He afterwards gave 
 the residue of all his property to three other persons, and 
 " my niece, M. F. T. D.," equally to be divided between 
 them. He had no sister, and no niece in the strict legal 
 acceptation of that word (I), but he had nieces-in-law, and 
 a sister-in-law, of whom the latter was the only person 
 called M. F. T. D. The House of Lords on these facts 
 decided, and affirming the decision of Sir J. Romilly, MisdeBcription 
 M.R, that for the purpose of explaining the ambiguity erfrLaski ^ ^ 
 and misdescription in the Will, extrinsic evidence was ad- evidence, 
 missible, but that the evidence of the solicitor as to what Evidence of 
 instructions he had received for the preparation of the Will ^^^'i'iitof ^ *° 
 
 '^ , Ms instruo- 
 
 was not admissible, and that the portion of the Will be- tions not 
 queathing a gift to M. F. T. D. was void for uncertainty. ad'^'ssiWs- 
 
 " The rule as to the reception of parol evidence to ex- j^^g ^s to tie 
 plain a Will," is perfectly clear. In every case of am- reception of 
 
 !•• 11 1 ii/'\ 1 • ^ • parol evidence. 
 
 biguity, whether latent or patent {m), parol evidence is 
 admissible to show the state of the testator's family or 
 property ; but the cases in which parol evidence is ad- 
 missible, to show the person intended to be designated by 
 
 (i) See ante, pp. 78, 290, and M. & G. 490 ; 26 L. J. Ch. 350, 
 
 Wade-Oeryy. MandUy, L. R. 1 Ch. affirming 25 L. J. Ch. 657 ; In re 
 
 Biv. Vol. I. 653 ; 45 L. J. Ch. 457. Blower's Trusts, L. E. 6 Ch. 361 ; 
 
 (Tc) 8 H. L. Cas. 172 ; 29 L. J. and the judgment of Sir G. Jessel, 
 
 Ch. 850. M.E., in Wells v. Wells, L. R. 18 
 
 ' (t) See as to the meaning of Eq,. 504 ; 43 L. J. Ch. 681. 
 "niece," Crook v. WhiUey, 7 De 6. (m) See ante, pp. 358,359,and 428. 
 
506 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Misnomer, 
 
 Queetion in 
 cases of this 
 kind often one 
 of the mean- 
 ing of lan- 
 guage more 
 than of law. 
 
 General rules 
 of construction 
 in cases of 
 misnomer and 
 misdescription. 
 
 the testator, are those cases of latent ambiguity mentioned 
 by Sir J. Wigram (w), where there are two or more per- 
 sons, who answer other descriptions in the Will, each of 
 whom, standing alone, would be entitled to take " (o). 
 
 In the case cited below, a testator in the lifetime of his 
 niece, E., made a Will containing legacies in her favour. 
 She died in the testator's lifetime, and although he was 
 aware of that fact, he made another Will which contained 
 bequests to E. identical with those in the former Will. 
 E. left a granddaughter named E. J. S., who was the tes- 
 tator's grand-niece by blood, and the question was 
 whether she took the property as niece, and the Court 
 held that she did (o). 
 
 As pointed out by the present Master of the Eolls, 
 these cases frequently turn not so much upon a ques- 
 tion of law as upon one concerning the meaning of 
 language. In illustration of this he stated that, although 
 the primary and ordinary meaning of "niece" means a 
 child of a brother or sister, yet the context of a Will may 
 give the word an enlarged or contrary meaning, and of 
 course the same observation is applicable to some other 
 terms of relationship and afii,nity. 
 
 "The general rule upon the subject of mistakes in the 
 names or description of legatees is that where the name 
 or description of a legatee is erroneous, and there is no 
 reasonable doubt as to the person who was intended to be 
 named or described, the mistake shall not disappoint the 
 bequest. The error may be rectified, and the true inten- 
 tion of the testator ascertained in two ways : 1. By the 
 context of the Will; 2. To a certain extent by parol 
 evidence" (p). 
 
 (m) In his work intitiiled, "An 
 Examination of the Rules of Law 
 respecting the Admission of Ex- 
 trinsic Evidence in Aid of the In- 
 terpretation of WiUa, " p. 68, 4th ed. 
 
 io) Stimgery. Qa/rdiner, 4DeG. 
 & J. 468 ; 27 Beav. 36 ; 28 L. J. 
 Ch. 758 ; Judgment. See also as 
 to Nephews and Nieces, Sherratt v. 
 
 J. R. 8 COi. 928; 42 
 L. J. Ch. 688 ; and as to misnomer 
 generally, In re Nunn's Will, L. E. 
 19 Eq. 331 ; 44 L. J. Ch. 265. 
 
 (p) 2 Wms. Exors. pt. 3, hk. 3, 
 ch. 2, § 2, 1151 et seq. See also on 
 this subject, Hayes & Jarman, 
 Forms of Wills, 8th ed. 438, n. 
 
OF EXECUTORS AND ADMINISTEATOES. 507 
 
 Again, if a testator names several objects of his bounty, Testator 
 who are clearly intended to take an entire fund between °*™°f M^^^ 
 them, but one of whom is incapable, and known by the of Ms bounty, 
 testator to be so at the time of making his Will, those capable t^'his 
 of the donees who are capable will take all {q). faowledge of 
 
 The rules of construction in favour of not disappointing 
 a bequest in these cases of misnomer when no doubt 
 exists as to the person intended to take, is founded on the 
 maxim of the Civil Law — Falsa demonatratio non nocet Governing 
 si satis de corpore constat; or, Falsa devnonstratione 
 legatuTn non peri/mit, which is applicable to things as 
 well as persons (r), and not only to Wills, whether of 
 personalty or realty (s), but all other instruments (s). 
 
 The application of the maxim in deciding concerning Its application 
 the subject matter of a devise may be seen from the "^ ^"^' 
 following case. A testatrix devised hereditaments " in 
 the county of Hants," described as " my Tedworth estate." 
 It was proved that the testatrix had an estate there, ex- 
 tending into two counties, Hants and Wilts, but which 
 had. been dealt with irrespective of the county division, but 
 the terms of the Will itself strongly indicating that the 
 whole estate was intended to be dealt with, the words 
 "county of Hants," were rejected as falsa demonstratio (t). 
 
 As to bequests, the following case {u) decided by Lord How maxim 
 Chancellor Hatherley in 1871, will illustrate how the t^^^'^ts." 
 maxim concerns them. A., hy his Will, bequeathed to 
 , C, the plaintiff, " all my shares in the P. L. banking com- 
 pany, now standing in the names of H. & K." The only 
 shares in this company which were standing in the names 
 or name of H. and K." or either of them, were twenty 
 
 (j) Clarke T. Clemnums, 36 L. J. (<) E.g., see Llewellyn v. Lord 
 
 Gh. 171. Jersey, 11 M. cSc W. 183 ; 12 L. J. 
 
 (r) See Broom's Leg. Max. 629, Ex. 243 ; Judgment of Parke, B. 
 Sth ed. W Parker v. Niekson, 1 De G. 
 
 (s) Dean v. Gibsmi, L. R. 3 Eq. J. & S. 177 ; 32 L. J. Ch. 397. 
 
 713 ; 36 L. J. Ch. 657 ; Judgt. of See also Stanley r. Stanley, 2 Jo. & 
 
 Wood, T.-C. ; In the goods of Gaus- Hem. 491; and WlUte y. Birch,, 
 
 den, 31 L. J. P. & M. 53. 36 L. J. Ck 174. 
 
508 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Case to show- 
 where the 
 maxim does 
 not apply. 
 
 "The Punas" 
 distinguished 
 from "Bank 
 Stock." 
 
 shares in the name of K., as sole executor of H., — and 
 which belonged to the testator beneficially as legatee 
 of H., — together with fifty-nine other shares standing in 
 the name of K. simply. Lord Hatherley held, affirming 
 the decision of Stuart, V.-C, that the earlier words of 
 this bequest were sufficient to cany all the shares, 
 and rejected the subsequent words as falsa demon- 
 stratio (x). 
 
 The non-applicability of the maxim now under con- 
 sideration will be seen from the important case of Slingsby 
 V. Orainger, decided in the House of Lords {y), and which 
 was this : — Miss Fox, who was possessed of property in 
 consols and also in Bank Stock, gave by Will to her brother, 
 "everything I may be possessed of . . . for his life, and 
 should he marry and have children of his own, to those 
 children after; but should he die a bachelor,! leave the whole 
 of my fortune now standing in the funds to E. S. my god- 
 daughter." The brother did die a bachelor. The words 
 which we have italicized are those which caused litigation 
 in this case, because the question was whether the expres- 
 sion "now standing in the funds," meant Government 
 Stock alone, or whether they could be construed so as to 
 include the Bank Stock. Accordingly, it was also neces- 
 sary for the House to affix a definite legal meaning to the 
 word " funds." Their lordships held that there was no 
 falsa demonstratio in this case, the words of the Will 
 being too closely connected together to admit the opera- 
 tion of the maxim before stated. Moreover, the term 
 " funds," used alone, must be taken to mean the Govern- 
 ment or public funds, that is, those appropriated by 
 parliament to the payment of the public debt, for which 
 
 {x) Goltman v. Gfregory, 40 L. J. 
 Ch. 352, where several important 
 common law authorities are cited. 
 
 (3^) 25 L. J. Ch. 573 ; Judgt. of 
 Stuart, V.-C, and the affirming 
 judgments of Knight-Bruce and 
 Turner, LL.JJ., re-affirmed; 7 H. L. 
 
 Cas. 273, 283 ; 28 L. J. Ch. 616 ; 
 unanimously decided in 1859 hy 
 Lord Chelmsford, C, Lords Cran- 
 worth, Wensleydale, and Kings- 
 down, the last learned Judge con- 
 curring, though with hesitation. 
 
OP EXECUTORS AND ADMINISTRATORS. 509 
 
 purpose Bank Stock never was employed, that being 
 merely a perpetual share in the profits of a trading corpo- 
 ration. Lord Wensleydale also repeated the important ob- 
 servations made by him in Abbott v. Middleton (z), as to j^^g ^^ ^^ 
 the paramount importance of adhering to the rule of con- construing 
 
 . . , , 1 1-1 words in a 
 
 struction, that words must, iinless obviously repugnant or wm. 
 absurd, have their natural meaning assigned them. Their 
 lordships held then, for the reasons stated, that the god- 
 daughter did not take the Bank Stock, but only the pro- 
 perty in the funds, although, as stated by Lord Justice 
 Turner in the Court of Appeal, if the testatrix had had 
 no money in the funds at all, the Bank Stock, under such 
 circumstances, might have passed. This point, however, 
 was not before the Court, and therefore no conclusive 
 statement can be made upon it. 
 
 The general rule in regard to the power of a Court of Rvde as to 
 Construction to insert words in a Will was thus stated ™ords'iu a 
 by Sir J. Komilly in the case oi Abbott v. Middleton (a) :-— Will to 
 
 " Whenever the context requires it, words may be sup- meaning. 
 plied, changed, and transposed. To determine, however, 
 where the context requires this change, insertion or trans- 
 position of words is much more difficult, and there is no 
 doubt this power is one that ought to be exercised very 
 cautiously lest a meaning be given to the Will different 
 from that which the testator intended. But when it is 
 required to give one uniform and consistent meaning to 
 the whole sentence which, without it, would be irrational 
 or repugnant, it may properly, and indeed must be 
 exercised." 
 
 Abbott V. Middleton, shortly stated, was as follows : — AbhoUv. 
 A. bequeathed to his wife B. an annuity for her life and '^' 
 
 the life of his son C, and directed that the principal pro- 
 ducing this should, on C.'s death, go to his children as he 
 
 (a) Referred to, ^osi, p. 527, n. (&.) worth and Wensleydale, diss., 7 H. 
 
 (a) 21 Beav. 143 ; 25 L. J. Ch. L. Gas. 68 ; 28 L. J. Ch. 110 ; 
 
 113 ; affirmed in the House of Abbott v. Middleton was followed 
 
 Lords by Lord Chelmsford, C, and in Gordon v. Gordon, L. R 5 E. & I. 
 
 Lord St. Leonards ; Lords Cran- App. 254. 
 
510 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Whole context 
 of language to 
 be considered. 
 
 When words 
 may be intro- 
 duced into a 
 
 wm. 
 
 might will, but in case C. died before B., then to other 
 persons. C. died in A.'s lifetime, leaving a son D., and the 
 question in the case was whether D. was or was not to 
 take, the other claimants contending that as C. had died 
 in B.'s lifetime, the gift went over to them. The Master 
 of the Rolls, however, held that the whole context of the 
 Will was such as to require additional words to make it 
 consistent with the obvious intention of the testator. 
 Those were "without issue," and the portion of the 
 context where they should be inserted was between 
 "dying," and "before his mother," because the testator 
 had clearly intended the gift to go over only in the event 
 of his son dying either unmarried, or married but leaving 
 no children. This decision was affirmed, though by no 
 means unanimously, as we have seen in the House of 
 Lords, and it is important to consider the judgments of 
 the dissentient lords before whom the case was heard. 
 Their lordships seem to agree with the doctrine expressed 
 in the case of Eden v. Wilson (6), that although words 
 may be interpolated into a Will where its language is 
 so inconsistent as to require such assistance to effect- 
 uate the testator's intention, yet they held that no 
 necessity existed for having resort to this rule under the 
 circumstances before them. Thus we come round again 
 to see that canons of construction may be applied or not 
 according to the view of a case taken by individual judges. 
 Of course, in entering upon a hostile examination of the 
 judgments of distinguished lawyers, one must always do 
 so with considerable diffidence, but it really seems that 
 had a contrary decision been given to that which was pro- 
 
 , (J) i H. L. Gas. 257. AU the 
 important cases on the subject of 
 the text, down to 1856, will be 
 found collected in Abbott v. Middle- 
 ton, approved in Gordon v. Gordon, 
 L. E. 5 E. & I. App. 254. See 
 also Sope v. Potter, 3 Kay & J. 
 206 ; Perkins v. Fladgate, L. R. 
 U Eq. 64; 41 L. J. Ch. 681, 
 where the testator, after gifts of 
 
 legacies, said, " I leave to my 
 
 sister M.," and this was held to 
 pass the residuary estate to M. 
 V. -C. Bacon expressed his objection 
 to adding words to a "Will, except 
 where it would be unintelligible 
 without them, but decided that this 
 particular paper was quite intelligi- 
 ble in itself. 
 
OF EXECUTOES AND ADMINISTRATORS. 511 
 
 nounced in Abbott v. Middleton, justice, common sense, 
 and the intention of the testator would alike have been 
 completely sacrificed. There can be no doubt, how- Caution witli 
 ever, that the authority of a Court of Construction to ^i^i^iitiie 
 
 . . ■'. . . power to insert 
 
 insert words m a Will, is — as all the learned judges in words is used. 
 the above case distinctly declared — to be exercised with 
 the utmost caution and judgment, and as stated by Lord 
 St. Leonards^—" that the intention to be found on the face 
 of the Will, could alone justify anything of the kind " (c). 
 
 To show how extremely reluctant judges are to exercise instances of 
 this particular power, except under the most extraordi- q^^^JT"^*^ 
 nary circumstances, we may mention two comparatively polate words ■ 
 recent cases of some singularity, where this unwilling- "'^ ^ ' 
 ness appeared. The first is the case of Clarice v. Clem- gia^i^ t. 
 mans (d). There, a testator gave to A., and to the Clem/mam. 
 widow of my late brother J., ^950 each. He then gave 
 the residue to E., and after her death to two persons 
 "and my brother J." The question here was, whether 
 the Court of Chancery could insert the words " the widow 
 of" before the other words — "my brother J.," in this 
 residuary bequest, and Vice-Chancellor Malins held that 
 they could not be inserted, although it was clear that the 
 testator had never intended to give any share to J., whom Where Court 
 he knew to be dead (d). The Court of Construction has p^^g^^ords. 
 no power to act on mere conjecture, or strike out one 
 name and insert another, but the Court may arrive at a 
 conclusion from the frame of a Will, and even supply the Ma/ supply an 
 name of a person omitted when.it is beyond doubt that ^^/ceXhT 
 such person was intended to be benefited, and no other circumstances. 
 name appears (e). In short, wherever it becomes neces- 
 sary to effectuate a testator's manifest intention, and give 
 his Will that construction which it is clear he must have 
 meant it to have, then the Court may reject, transpose, or 
 supply words, and vary their primary meanings. A re- 
 
 (c) See ante, p. 510, n. (b). Pole, 2 CI. & F. I9i. See also 
 
 {d,} 36 L. J. Ch. 171. 2 "Wms. Exors. Ft. 3, bk. 3, ch. 2, 
 
 («) Doe iem. WicJchamv. Turner, § 1, 1081, et seq. 
 2 Dowl. & By. 398; Langstm v. 
 
512 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Name where 
 not supplied. 
 
 of word 
 "Family" 
 a. Will of 
 personalty. 
 
 " Family " 
 primarily ' 
 signifies 
 "children.' 
 
 markable instance of this occurred in Passmore v. Hug- 
 gvns, 21 Beav. 103; 25 L. J. Ch. 251, where "future" 
 was read " former." See also In re Ridge's Trust, where 
 gaps in a Will were filled up by judicial implication, L. R. 
 7 Ch. 665 ; 41 L. J. Ch. 787. See post, p. 547. 
 
 The next case is Driver v. Driver (/), where A., after 
 making certain dispositions, said : — " and any property of 
 which I may die possessed, and I nominate and appoint 
 my son B.," sole executor. Here then, there was a gift of 
 the residue, but no mention of the person who was to take 
 it. Vice-chancellor Bacon, after remarking that he was 
 permitted to gather the testator's intention only from the 
 words of his Will, held that, as this did not appear, he 
 could not supply it, and therefore that the testator had 
 died intestate as to his residuary estate. 
 
 An executor is also often called upon to affix a meaning 
 to certain general words which occur in a Will. Many of 
 these have already been referred to in our previous 
 chapter on Personal Property (g) ; but there are one or 
 two which may be noticed or further alluded to here, and 
 first as to the word " Family.'' As to this teim, it may be 
 stated that although various significations may be ascribed 
 to it by reason of the phraseology employed in the con- 
 text of a Will, yet, its primary meaning in a Will of 
 personalty is (h), and has always been, held to be the 
 children (if any) of a testator. 
 
 The present Master of the EoUs in his judgment in 
 Pigg V. Cla/rke, after noticing the various senses in which 
 
 (/) 43 L. J. Ch. 279. 
 
 (j') See Index for these. 
 
 Note. — When it is said that an 
 executor is called upon to construe 
 words, we mean, of course, that he 
 may go to a Court of Construction 
 for such purpose, and this is the 
 Chanaery Division of the High 
 Court of Justice. 
 
 (h) Pigg V. Clarke, L. E. 1 Ch. 
 Biv. Vol. III. 672. 45 L. J. 
 Ch. 849 ; Barnes v. Patch, 8 Ves. 
 604. The latter is one of the earliest 
 
 cases, and the former is the latest 
 case on this subject, decided respec- 
 tively by two of the most eminent 
 Masters of the Rolls, namely, Sir 
 W. Grant (1803) and Sir G. Jessel 
 (1876). It may also be remarked, 
 that the late Lord RomiUy, M.R., 
 held a similar view in Me Terry's 
 Will, 19 Beav. 580, which was fol- 
 lowed by Sir G. Jessel. As to the 
 meaning of " family " in a Will of 
 realty, see next page. 
 
OF EXECUTORS AND ADMINISTRATORS. 513 
 
 "family" has been used, said that "the law has settled 
 ■which of the several meanings of the word is the prim/iary 
 one, and then you require a context to give it one of its 
 other meaniiags .... I consider it settled, therefore, 
 that where there is no context, and where there are chil- 
 dren of a person to whose ' family ' a gift is made, the 
 children are exclusively entitled." 
 
 In the absence of a controlling context, however. May include 
 " family " may include relations (i), next of kin (k), or in jf ^^otmn- 
 a devise it means inheritance, testator's heir-at-law. t™Uedby 
 Thus, where a testator gave his realty to be divided 
 equally between his two sons who were to enjoy the 
 interest thereof, and then it was to go to their respective 
 famUies, it was held that the two sons took as tenants in 
 common in tail (l). 
 
 In a Will of pure or mixed realty, the word " family " Meaning of 
 
 does not primarily mean "children," but denotes rather "^^J^J"'-^^ 
 
 '' . , devise. 
 
 those who take according to that species of succession 
 
 which belongs to inheritance (m). 
 
 " Issue " is another of these general words, and here " Issue," its 
 
 again we have to consider first its primary meaning. 
 
 " The term ' Issue ' is of very extensive import, and when 
 
 used as a word of purchase (n), and unconfined by any 
 
 manifestation of intention, will comprise all persons who 
 
 can claim as descendants from or through the person to 
 
 whose issue the bequest is made ; and in order to restrain 
 
 (i) The word, "relations" has (») That is, in a legal sense, one 
 been held to mean next of kin. indicating in whom the title to an 
 
 meaning. 
 
 3 De G. F. & J. estate commences after another per- 
 il 3. son's title expires by the operation 
 
 (i) Snow V. Teed, L. E. 9 Eq. of a Will, or other instrument. See 
 
 622 ; 39 L. J. Ch. 420. ante, p. 84. The technical word 
 
 (]) Lucas T. Goldsmid, 29 Bear, "purchase"— which signifies pos- 
 
 667 ;, 30 L. J. Ch. 935. session of lamds by a man's own act 
 
 (m) See, as to this, amte, pp. 68, or agreement, and not by descent — is 
 
 69 ; and ftirther, as to word not, strictly speaking, applicable to 
 
 "family" in devises, the cases the acquisition of personalty, al- 
 
 cited in Lucas v. Goldsmid ; see though we apply the term thereto 
 
 also, on the subject generally, 1 in a sense analogous to that used in 
 
 Hop. Leg. 137—142. regard to realty. 
 
514 
 
 WILLS OF PERSONAL PEOPEKTY. 
 
 Meaning of 
 " issue " 
 restricted only 
 by context of 
 WiU. 
 
 Primary 
 meaning of 
 "chUdren." 
 
 How meaning 
 of word 
 " issue '■ may 
 be restricted. 
 
 the legal sense of the term, a clear intention must appear 
 upon the Will " (o). The rule then being here, as in other 
 cases, to give the word " issue " its primary meaning, there 
 must appear on the foice of the Will a clear intention to 
 restrain such import, which being so, no extrinsic evidence 
 is admissible in support of an attempt to affix a secondary 
 meaning to the word. It may then be shortly stated that 
 the ordinary and primary meaning of the word when con- 
 fined to children, is legitimate children, male and female, 
 especially where used with its correlative " parent " ( p) ; 
 that " children " primarily means issue in the first de- 
 gree (g), but that the primary signification of the term 
 standing alone is, as before stated, that of descendants in 
 a more remote degree. 
 
 The word " issue," . then — ^which always includes chil- 
 dren, though the converse of this is not the case — may be, 
 and very often is, construed as meaning " children," when 
 there are any words in the context of a WiU which can 
 fairly be taken as restrictive of the wide import which 
 standing alone the word naturally has. Thus, taking two 
 cases cited by Mr. Eoper, we shall see how this limiting of 
 the primary meaning of issue may take place. In the 
 first, that of Horsepool v. Watson (r), the produce of sale 
 of realty was given " among all the issue, child or chil- 
 dren of J. by his wife M. and their representatives equally." 
 Here it was held that the testatrix had limited the mean- 
 ing of "issue" by coupling with it "child or chUdren." 
 
 (o) 1 Rop. 94 ; 2 Wms. Exors. 
 pt, 3, bk, 3, ch. 2, § 2, 1112. See 
 also Martin v. HolgaU, L. E. 1 
 H. L. 175 ; 35 L. J. Ch. 789, where 
 "issue" was read as "children." 
 Where " children " was held not to 
 mean " issue," see Pride v. Fooks, 
 3 De G. & J. 252 ; 28 L. J. Ch. 81. 
 
 (p) Per Lord Hardwiote, iu 
 Harf V. MiddUhurst, 3 Atk. 373 ; 
 also SibUy v. Perry, 7 Ves. 522. 
 
 (q) Per Lord Kingsdown, in 
 
 V. Byng, 10 H. L. Cas. 171 '. 
 31 L. J. Ch. 470. " ChUdren," in 
 its primary sense, is to be read as a 
 word of purchase, and to be con- 
 fined to issue in the first degree. 
 But it is equally clear that it is a 
 flexible term, which may, by the 
 context of a will, be converted into 
 a word of limitation, and inter- 
 preted "heirs of the body. " 
 (r) 3 Tes. 383. 
 
OF BXECUTOES AND ADMINISTRATORS. 515 
 
 Again, in Sibley v. Perry (s), the testator gave to J., R., Where 
 and M. £1000 each if living at his death, but in the event jl'" chiidSn*" 
 of all or any of them previously dying, he willed that " the 
 lawful issue of every one of them so dying should equally 
 have and enjoy the £1000, which their respective parents, 
 if living, would have had. On these facts. Lord Eldon said 
 that as the word " parents " must be understood to mean 
 father and mother, which also more clearly appeared 
 from another legacy in the same Will, the coiTelative 
 " issue " must be taken in the sense of " children." Hav- 
 ing thus seen how the word " issue " may be confined by 
 the context of a Will, we will now direct our attention to 
 the word "children," when used alone in a bequest, 
 putting some imaginary cases for that purpose : — 
 
 (1.) A gift of £1000 to "the children of B.," and he "Cluldreu"m 
 
 has no child, or one child, or children. * 
 
 (2.) A gift to the " children of B. who shall be living at 
 my death," and B. has two, his wife being also 
 enceinte. 
 (.3.) A like gift to B. and his children. 
 (4.) The same to B. for life, with remainder to C. ab- 
 solutely, and in case C. dies under age, or un- 
 married, without a child, then to D. {t). 
 The first of the above cases is one simple in appear- 
 ance, but it involves some points of interest and import- 
 ance. Let us first consider what results from such a 
 bequest where B. has no child at all. Here then is an 
 executory gift, and although there be no child in esse, 
 either at the date of the testator's Will or at his death, 
 yet the gift must, by the strict rule of law, remain intact 
 until a child, or children be born (u). Another point here 
 arises ; namely, what is the extent of the period during 
 
 (s) 7 Ves. 522, with which read should die without issue, then to 
 Soss Y. Moss, 20 Beav. 645 ; May- B., see post, p. 527, n. (J). 
 nard v. Wright, 26 Beav. 285, on (m) This is not so, however, as we 
 this particular point. have seen, in the case of an exe- 
 
 (t) As to a gift to A., and if he cutoiy devise, ante, p. 504. 
 
 h h 2 
 
516 
 
 WILLS OF PEESONAL PKOPEETY. 
 
 Presumption 
 of law as to 
 a man or 
 woman having 
 cMldren at 
 any time 
 during life. 
 
 Improbability 
 as to having 
 
 Bequest to 
 "children" 
 and there are 
 none in esse 
 at testator's 
 death ; 
 
 or one child 
 or children. 
 
 which the law presumes a person of either sex, capable of 
 having offspring born to them. 
 
 In answer to this it may be stated, that the general 
 presumption of law on the likelihood of issue being bom 
 during a person's lifetime, whether the person be a man or 
 a woman, is that it is possible for each to have issue at any 
 time before death. But this presumption has in several 
 cases been set aside, and improbability has been considered 
 in preference to that possibility which the law presumes. 
 Thus in the case of Price v. Boustead (v), Lord EomUly, 
 M. E.., ordered the transfer and payment of trust funds 
 to a spinster who was upwards of fifty-three, and this 
 ruling was followed by Kindersley, V.-C, in Haynes v. 
 Haynes {x), requiring of course the usual undertaking to 
 refund in the event of issue being born. Having seen 
 how the gift stands in our imaginary case where there is 
 no child in esse, we will now suppose one child to be in 
 existence at the death of the testator. From the terms of 
 the bequest, it is clear that all the children which B. may 
 ever have are to share in the gift; accordingly,|the sum must 
 be taken care of to answer the claims of the future children, 
 if any, and where " issue " is used — their children also. 
 Assuming then any to come into existence, how do they all 
 take ? Ever since the time of Lord Eldon the law has been 
 that under these simple circumstances here put, the chil- 
 dren will take as joint tenants, and, therefore, the survivor 
 of the class only will take the whole sum bequeathed (y). 
 
 All bequests, however, it is obvious, are not so simply 
 expressed as the one we have — with a view to note prin- 
 
 (d) 8 L. T. (N. S.) 565. 
 
 (x1 35 L. J. Ch. 303, in a note to 
 which are collected all the cases con- 
 cerning the presumption of females 
 being past child-bearing. See also 
 Me Millner's Estate, L. E. 14 Eq. 
 245 ; 42 L. J. Ch. 44, where a lady, 
 aged 491, had been married to her 
 husband fortwenty-six years without 
 issue, and the Court presumed that 
 she never would have a child by him. 
 
 In such cases, however, as in Haynes 
 V. iHitj/mes, ' the Court requires an 
 undertaking — ^but nothing more — 
 that in the event of issue being 
 born after the liberation of the fund 
 the money will be returned. 
 
 (y) Cooke v. He Tandes, 9 Ves. 
 204, cited in 2 "Wms. Exors. pt. 3, 
 bk. 3, ch. 5, I 1, J 462, and sea 
 the note (m) ther?. 
 
OF EXECUTORS AND ADMINISTEAT0R8. 517 
 
 ciples — been considering, and the addition of a very few 
 words to those given would lead to a far different con- 
 struction. Tims had the gift been given "between the Words creating 
 children of B.," this would have created, on the other hand, co^^T^ ''^ 
 a tenancy in common (z). 
 
 2. In our second case, we suppose a gift " to the children Second case 
 of B., who shall be living at my death," and B. has two, his ""^idered. 
 wife being also enceinte. Here we have a gift to children as Gift to a 
 a class, to be ascertained at testator's death, and onlv then, f?'^*. '^; 
 
 , , . , . . ,. . . J ^ > tinguished 
 
 by which is meant m contradistinction to individuals men- from gift to 
 tioned by name; and the class comprehendsln this instance Ji^e''^"^ ^^ 
 what the terms of the gift specify, namely, those and only 
 those, living at the death of the testator, and also the child 
 en ventre sa mere (a). This distinction between giving to 
 persons in a class and giving to the same nominatim is of 
 considerable importance, because if a sum be given to " the 
 children of B.," this being to them as a class will, in the ab- 
 sence of a controlling context, make them joint tenants, and 
 if one dies before the others there is no lapse. If, on the 
 other hand, the same sum be given to C, D., and E., respec- 
 
 (2) Attorney-General v. Fletcher, said 'Wood, V.-C, in Gahh v. Pren- 
 
 L. R. 13 Eq. 128 ; 41 L. J. Ch. dergast, 1 K. & J. 439 ; 24 L. J. 
 
 167, decided on the authority of Ch. 431, " that the notion is some- 
 
 Laskbrooke v. Cock, 2 Mer. 70.1 what startling . . . and it would 
 
 *{a) The true rule of English law be a surprise on a, testator to be » jj^g „f j„ 
 
 on this subject was thus stated by told, that under these words he had as to unborn 
 
 Wickens, V.-C, ia. Pearce v. Oar- let in all the illegitimate chUdreu child being 
 
 rington, 42 L. J. Ch. 516 ; afarmed he might at any time have had ; considered in 
 
 L. R. 8 Ch. 969 ; 42 L. J. Ch. but with regard to a settlement, '**^- 
 
 900: — "In construing a Will, a the case is of a somewhat different 
 
 child in its mother's womb is character, since a settlement ope- 
 
 treated as living, where so to treat rates at the execution." See also 
 
 it gives the child an interest, vested the important case of Hill v. Crook, 
 
 or contingent, which otherwise it L. R. 6 H. L. 265 ; 42 L. J. Ch. 
 
 would not have, — unless, of course, 702, as to "children" in a Will 
 
 there is a clear intention to the including illegitimate children, 
 
 contrary." where the expressions therein used, 
 
 fKoTB. — If a gift be to "children or circumstances, raise a probability -f "Bom, or to 
 
 bom, or to be bom," these words that the latter were intended to be bom."^ 
 
 will include all his children, legiti- take with the former as an entire 
 
 r mate or illegitimate. "I confess," class. See also crofe, p. 492. 
 
51S 
 
 WILLS OF PERSONAL PROPEETT. 
 
 Other words 
 creating joint 
 tenancy. 
 
 Distinction to 
 I)e o1)8erved in 
 these cases. 
 
 Case of no 
 lapse of legacy 
 when legatee 
 dies in tes- 
 tator's life- 
 time. 
 
 tively (6), or when they, the children of B., attain a certain 
 age (c), they will not take as a class, because the testator 
 will be presumed to have indicated a severance, but they 
 will take as tenants in common, that is with distinct but un- 
 divided interests, so that if one predecease the testator, his 
 share will lapse and fall into the residue. A distinction, 
 however, must be noticed between cases where a legacy is 
 given to a class of persons in general terms as tenants in 
 common, as to the children of B., and those instances 
 where it appears upon the face of the Will that particular 
 objects at the date of it were intended to take the pro- 
 perty. In the former case there would be a lapse by 
 the death before the testator of one of the legatees or a 
 revocation of the bequest to him. In the latter such would 
 not occur, since it would be presumed that those persons of 
 the described class who should survive the testator, were 
 the only objects of his bounty. The following case — here 
 put shortly — cited in " Roper on Legacies " will illus- 
 trate what is meant : — A. gave to the children of M. 
 £2000, to be equally divided among them. At the date 
 of the Will M. had three children, J., E., and W., but W. 
 died before the testator, and it was contended that in con- 
 sequence a certain portion of the £2000 lapsed into the 
 residue. But the Court of Chancery declared that the 
 children of M. living at the testator's death, were entitled 
 to the whole of the £2000 {d). 
 
 (f>) Be Hodgson's Trusts, 1 Kay & 
 J. 178 ; Re Moore's StMement 
 Trusts, 31 L. J. Ch. 368. 
 
 (c) See Bcmd v. Nerth, 33 L. J. 
 Ch. 556, with which read McGregor 
 T. McGregor, 1 De G. F. & J. 63. 
 The mere circumstance of children 
 having to come into esse at different 
 periods does not create a tenancy in 
 common, Amies v. Skillerti, 14 
 Sim. 428 ; 14 L. J. Ch. 165 ; hut 
 it appears that words indicating at 
 what age they axe to take will 
 create such "tenancy, Weodgate v. 
 
 Urvunn, 4 Sim. 129 ; tnt the dis- 
 tinction appears rather refined. 
 
 NoTte. — The most lucid exposi- 
 tion of a gift made to a class, which 
 has come under the notice of the 
 present writer, is that of Lord Cot- 
 tenham, C, in Barber v. Barber, 3 
 Myl. * Cr. 688 ; 8 L. J. Ch. 36, 
 on the point of the case connected 
 with the present subject the judg- 
 ment of Lord Langdale, M.K., 7 
 L. J. Ch. 70 (1837 and 1838). See 
 next page. 
 
 (<^) See, for a gift of realty to 
 
OF EXECUTORS AND ADMINISTRATORS. 519 
 
 If, ia the imaginary case we have put at page 515, A. What becomes 
 has no children living at the testator's death, the gift, "^f^^^u^g 
 nevertheless, still remains available for any' that maybe to take at 
 born afterwards, but in the meanwhile the interest falls ^^ti^^ 
 into the residue (e). 
 
 It may be necessary to remark here that the word "Class "may 
 " class," used above in reference to children, is by no means sorts'™ per- 
 confined to them, but the term may include other persons, ?ona where 
 if the intention be to do so. Thus, a gift by Will to A., aoao.'°°^ 
 and after her death to her surviving brothers and sisters, Brothers and 
 where it would be held that those living at the death of ^'^ ^'^^' 
 A. would alone be entitled (/). A gift for the benefit of Unbeneficed 
 unbeneficed curates whose annual incomes do not exceed ""^^ °^' 
 £35, and to such as shall be recommended in a particular 
 manner (g), in which case there would be two separate 
 classes ; also a bequest of residue to executors, followed Executors and 
 by an appointment of persons as such, is a gift to them residuary 
 as a class in their official character ; accordingly, if one dies 
 in the lifetime of the testator, the whole residue vests 
 in the two survivors (h). 
 
 But such a case is to be distinguished from one like the Barber t. 
 following already alluded to (i). Here a testator directed •^'"■*'''' 
 that on a certain event happening, his property should 
 become the property of A., B., C, and D., to be divided be- 
 tween them in equal shares, and he appointed these persons 
 his executors. . He also appointed E. and F; as additional 
 executors, and ordered that if any of these parties refused 
 to act as executor the bequest to him should be annulled. 
 The event above-mentioned happened, and only three of 
 
 cbUdren as a class, ParJcer v. Hare, 453. 
 
 Tootal, 11 H. L. Gas. 143 ; 34 L. J. (A) Knight v. Gould, 2 Myl. & 
 
 Ex. 198. K. 295. 
 
 (e) Harris v. Lloyd, Turn. & (i) Barber y. Barber, 3 Myl. & 
 
 Rnss. 310. Cr. 688 ; 8 L. J. Ch. 36, reversing 
 
 (/) Davies v. Thorns, 3 De G. & on the particular point above, 7 
 
 S. 347 ; 18 L. J- Cli- 212. L. J. Ch. 70. 
 
 (a) Pennington v. Buckley, 6 
 
520 
 
 WILLS OF PEESONAL PIIOPERTY. 
 
 Decision of 
 Lord Langdale, 
 M.B,. 
 
 Eeyersed by 
 Lord Cotten- 
 bam. 
 
 Nature of 
 gifts to a 
 
 the nominated executors, namely A., B., and C, acted 
 and proved the Will, whereupon the question arose as to 
 what became of the share that D. would have been 
 entitled to had he acted as executor — did it belong to A., 
 B., and C, or did it lapse ? Lord Langdale, M. R, held 
 that the executors, as residuary legatees, constituted a 
 class, and that they took the share of D. His Lordship's 
 decision on this particular point of the case was reversed 
 by Lord Cottenham, C, who held that the executors did 
 not constitute a class, and that the share of D. lapsed for 
 the ben^fit of the testator's next of kin. The Chancellor, 
 in a judgment which we have recently commended to 
 the reader's attention, said : — " A gift to a class im- 
 ports an intention to benefit those who constitute that 
 class ; but a gift to individuals, described by their several 
 names or descriptions, though they may together consti- 
 tute a class, implies no intention to benefit the class, but 
 the individuals who, together, claim as a class ... If 
 the three surviving executors, to whom the share of the 
 residue was given, were entitled, they must be so entitled 
 as constituting the class intended to be benefited. Now, 
 what is the class they so constitute 1 Not the executors : 
 because there were two other persons named besides the 
 four intended to be benefited; and although the two 
 others declined to prove, so that the three in fact are the 
 only acting executors, yet the class of executors as con- 
 templated by the testator, constituted the six. There 
 was clearly not an intention to give a benefit to such of 
 the six as might act as executors, for that might be giving 
 a benefit to two. There is, therefore, nothing in common 
 with Knight v. Gould, or any other case, where the gift 
 has been considered in favour of such as might act . . ." 
 To effect a gift to persons as a class, which a testator him- 
 self constituted, and who may be in a condition to take at 
 a particular time, he may use expressions from which such 
 intention may be fairly deduced, but such an intention 
 cannot be inferred from a gift to persons nom/matvm. 
 
OP EXECUTORS AND ADMINISTRATORS. 521 
 
 We have thus quoted from the judgment in Barber v. 
 Barber at some length for two reasons, first, because it is 
 one which well illustrates principles, and secondly, shows 
 by a chain of good reasoning, how those principles are 
 applicable to facts of a somewhat peculiar character. 
 
 Again, the use of the word " relatives " may constitute KektiTes con- 
 a class, as where a testatrix gave her residuary estate to ci^sf"^ * 
 her " relatives " (h). Lord Romilly said, that it was 
 settled that under a gift of this description, which was one 
 to a class to be ascertained at the testator's death, also 
 that relatives meant the persons who would take under 
 the Statutes of Distribution (I), and that their position 
 was that of joint tenants. If the Statutes of Distribution Effect of nam- 
 are expressly — not impliedly — named in a bequest like n^ing the 
 the above, the relatives would take as tenants in common Statutes of 
 
 Distnbution 
 
 m the same shares that they would take on an intestacy, in gifts to 
 but if the Statutes of Distribution are not expressly named, * ''^^^• 
 the case is different (m). 
 
 Lastly, annuitants may form a class where the testator 
 intends them to do so, and the survivor may take the 
 interest of a deceased member of the class ; but if the 
 intention "be otherwise, as where an annuity is given " to 
 be equally divided between A. and B. for and during the 
 joint lives of the survivor or longer liver ' respectively,' " 
 A and B. will take as tenants in common for their j oint lives 
 and the life of the survivor. Thus, supposing an annuity 
 of £1000 to be given in the way just described ; if A. dies 
 fitst, his legal representatives will be entitled to a moiety 
 
 (*) Eagles Y. Le Breton, L. R. 15 Joint tenants are incapable of giving 
 
 Eq. 148 ; 42 L. J. Ch. 362. their respective shares hy "Will. 
 
 (Q 22 & 23 Car. 2, c. 10; 1 Ja. 2, Wms. R. P. Ch. 6. The former 
 
 ^ j7_ statement does not imply that one 
 
 (in) See also Bullock v. Dovmes, co-trustee is necessarily responsible 
 
 9 H. L. Cas. 1 cited in the former for the acts of another; he is not so; 
 
 gjjgg nor is one co-executor necesscmt/i/ 
 
 jj-Q.jj,_ y^Msfees also form a class, liable for the default of another, in 
 
 and by appointment and acceptance the absence of collusion. Townley v. 
 
 of office become joint tenants. See Sherborne; Bricey. StoJces, 2 L. C. 
 
 Mton V. Smth, 2 Beav. 236. Eq.. 899. 
 
 Annuitants 
 as a class. 
 
523 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 A gift "to B. 
 and his 
 children, '' 
 
 Gtitt to a 
 class, 
 
 where the 
 legatees stand 
 in different 
 degrees of 
 relationship. 
 
 Gift "toB. 
 and his 
 
 Sift of realty 
 to A., his off- 
 spring, issve, 
 or seed. 
 
 of the annuity during B.'s life; whereas,, if A. and B. had 
 been joint tenants, B. would have enjoyed the whole 
 annuity during his life (n). 
 
 3. In the next of the imaginary cases proposed for con- 
 sideration on page 515, we have a gift "to B. and his 
 children." Now, is this a gift to a class or not, for the 
 donees do not stand in the same relationship ? The prin- 
 ciple involved in all bequests like this is identical with 
 that enunciated by Wigram, V.-C, in Sutton v. Torre, 
 where a bequest was to testator's daughter and her 
 younger children (o). " In the case of a bequest of per- 
 sonalty to A., B., and C, they would no doubt take as 
 joint tenants. In the case of a gift to a class of persons, 
 as children or grandchildren, they would take as joint 
 tenants. And if, instead of being a bequest to a class, a 
 stranger be added, they would still take as joint tenants. 
 The question here is, whether if one of the cZctss he in a 
 different degree, ex. gr., a mother, the case is the same. 
 I am of opinion that, upon principle, the case is the same, 
 and the cases seem to warrant the conclusion that it 
 should be so" {p). 
 
 If the gift just considered, had been to "B. and his 
 issue," a very different construction must have been put 
 upon it, because, as we have seen, " issue " in the absence 
 of other restraining words, includes remote descendants. 
 A gift of reklty by "Will to A. and his children, offspring, 
 issue, or seed, would confer upon, A. an estate tail(g'), and 
 
 (») Bryan v. Twigg, or Mawan 
 V. Brycm, L, B. 3 Eq. 433 ; 36 
 L. J. Ch. 45, and see this case 
 under the former name in L. B. 3 
 Ch. 183 ; 37 L. J. Ch. 249, aifirm- 
 ing an order of Malins, V.-C, — 
 made on the authority of the judg- 
 ment of Kindersley, V.-C, in the 
 first case — as to the mode in which 
 the childi-en of one of the an- 
 nuitants, A. and B., took. 
 
 (o) 11 L. J. Ch. 255 ; 6 Jur. 
 
 234. 
 
 (p) See also De Wttte v. Be 
 Witte, 11 Sim. 41 ; 9 L. J. Ch. 
 271, Trhere a, daughter and her 
 children took as joint tenants of a 
 residue given in trust. The reader 
 will, of course, bear in mind, 1 
 Vict. c. 26, s. 33, as to no lapse 
 arising on gifts to children and 
 other issue of testator. 
 
 (?) 2 Black. Comm. 115. Not 
 so by deed, the rule being that a 
 
OF EXECUTOES AND ADMINISTEATOES, 523 
 
 a rule of law generally stated, says, that -words in a Will 
 
 which, if applied to realty, create an estate tail, will, if 
 
 employed in regard to personalty, confer an absolute gift 
 
 upon the donee. Accordingly, in a testamentary gift of Gift of per- 
 
 money to "B. and his issue," B. takes the sum absolutely, B™Sthf 
 
 and is the same as if the gift had been to him and the teirs of his 
 
 heirs of his body. Such would also be the case where the " ^' 
 
 gift of personalty is to " B. and his offspring," for this 
 
 term is, when used simpUciter, synonymous with issue. 
 
 This was so held in the case of Young v. Davies(r), 
 
 where Kindersley, V.-C, entered into both a legal and an 
 
 etymological examination of the term. In Young v. "Offspring." 
 
 Bavies, a testator gave certain dividends to his son G., and 
 
 after G.'s death to his own "surviving daiighters and their 
 
 lawful offspring." The testator at his decease, left his son , 
 
 and four daughters, C, E., A., and M., and it appeared 
 
 that his Will had been attested by two of these, C. and 
 
 E., the gift to whom was therefore void (s). E. having 
 
 died in the son's lifetime, the son predeceased his other 
 
 sisters. The survivors C, A., and M., had between them 
 
 fifteen children and eleven grandchildren, and the main 
 
 question for the Court was whether these latter should 
 
 be comprehended under the word "offspring." Kindersley, "Offspring" 
 
 '^ . . . 1 in its primary 
 
 V.-C, said that the term m its proper and natural sense, meaning 
 extends to any degree of lineal descendants, and has the ^gg^g^^aJj')^ 
 same meaning as " issue." " If," observed his Honour, 
 " this was real estate, and the word ' issue ' was used, it 
 would confer an estate tail ; but being personalty, it con- 
 fers the absolute interest, and is a word of limitation, not 
 of purchase." The Vice-Chancellor held that a life 
 
 ■Will is to be construed less strictly in the text, would create a life estate 
 tliaa a deed, on the ground that a only, for the words are not con- 
 testator may hare lieen iriops con- sidered to be those, technically 
 silii, that is to say, not have had the speaking, of procreation, 
 same opportunity of proper assist- (r) 2 Dr. & Sm. 167 ; 32 L. J. 
 ance when making the former as m Ch. 372. 
 
 making a deed. Expressions, then, (s) Under 1 Vict. c. 26, s. 15. 
 
 in a grant of realty, similar to those See cmte, p. 328. 
 
524 
 
 WILLS OF PEESONAL PE.OPBRTY. 
 
 interest was given to the son, that hy the surviving 
 daughters the testator had meant those living at the son's 
 death; that "offspring" meant issue; lastly, that the 
 daughters took absolutely as joint tenants, "which being so, 
 and the gift to the attesting daughter being void, the 
 other daughters as joint tenants took the whole, there being 
 no lapse of C.'s share (t). 
 
 Survivorship. This case introduces us to some words of allied 
 meaning, frequently occurring in Wills, and which have 
 led to much litigation. These are "survivors," "sur- 
 vivor," " survivorship," " surviving," &c. The real literal 
 meaning of the word survivors is clearly those of a 
 number of persons who outlive the rest, the survivor 
 being t)ie one who outlives them all. 
 
 The right of survivorship, or as it is sometimes called, 
 the right of accruer or accretion, and in the Eoman Civil 
 
 Jm accres- Law, jus accrescendi (u), is the chief feature in a joint 
 tenancy, whether of realty or personalty, and is, as we 
 see, one also often of very great importance in considering 
 and determining the rights of legatees. 
 
 Swrvimr. Let US put a case by way of illustrating principles, 
 
 and with that object, we cannot do better than to take the 
 case supposed and examined by Lord Justice Turner, in 
 his judgment in White v. Baker (x). " Where," said his 
 lordship, " there is a bequest to A. for life, and after his 
 death to B. and C, or the survivor of them, some meaning 
 must, of course, be attached to the words ' the survivor.' 
 They may refer to any one of three events : (1) to one of 
 
 (i) See also, as to tlie construction 
 of "offspring," Thompsonv. Beasley, 
 8 Drewry, 7 ; 24 L. J. Ch. 327, 
 wliere " offspring " was used in the 
 alternative with " child," and the 
 same learned Judge held that "off- 
 spring " meant other than children. 
 But in Uste/r v. Tidd, " offspring" 
 was held to include children to 
 the exclusion of grandchildren. 29 
 Beav. 618. 
 
 (m) See the note in Sandars' 
 Justinian, to sect. 1 of Tit. 15 in 
 Lih. 2. 
 
 (x) 2 De G. F. & J. S5 ; 29 L. J. 
 Ch. 577. This case in itself is not 
 one so well calculated to exemplify 
 general principles, for, as stated by 
 Wood, V.-C, in In n Hviatrn's 
 Trusts, L. R. 1 E(i. 298, the de- 
 cision there turned upon the par- 
 ticular language of the Will. 
 
OF EXECUTORS AND ADMINISTRATORS. S23 
 
 the persons named surviving the other ; (2) to one of 
 them only surviving the testator ; or (3) to one of them 
 only surviving the tenant for life ; and in the absence of 
 any indication to the contrary, they are taken to refer to 
 the latter event, as being the one most probably referred 
 to. But where, as in the present case, the bequest is to 
 A. for life, and after his death to B. and C, and in case 
 either of them dies in the lifetime of A., the whole to the 
 survivor, it is plain that the words in their natural im- 
 port refer to the one surviving the other, and the ques- 
 tion is, not to which of the events above mentioned the 
 testator intended to refer, but whether there is any con- 
 text to alter the ordinary meaning of the words which he 
 has used." Lord Justice Turner intimates here the well 
 established ajid common sense rule that the word " sur- 
 vivor " must, like all others in Wills, be allowed prima, 
 facie to have its literal signification, of those surviving at 
 the period spoken of by the testator, and no other, unless, 
 of course, such meaning would violate the clear meaning 
 of the rest of the instrument containing it (y). 
 
 The following case, from the simple character of its 
 circumstances, will completely illustrate the necessity Where "sur- 
 which occasionally arises for reading the word " survivor " " otber.''^'^ 
 otherwise than with its ordinary meaning, so as to effec- 
 tuate a testator's intention. We refer to In re Row's 
 Estate (a), the facts of which were these : — W. Row, by Case of In re 
 his Will, dated in 1828, devised certain freeholds to J. P. ^^''^ ^'^'• 
 for life, with remainder as to one undivided fom-th part 
 
 (y) See also the luminous exami- of Lord Selborne, C, in Waite v. 
 
 nation of the signification of "sur- lAttUwood, L. E. 8 Ch. 70 ; 42 L. 
 
 vivor " by the same learned judge J. 216, reversing a decision of Lord 
 
 ialnre Qregson's Trusts, iDeG. 3. EomiUy, M.E. With this read 
 
 & S. 428 ; 34 L. J. Ch. 41 ; In re Wake v. Ywrah, 45 L. J. Ch. 533 
 
 Keep's Will, 32 Beav. 122, -which (App.), affirming HaU, V.-C, L. E. 
 
 also illustrates how the word may, 2 Ch. Div. 348. In the former case 
 
 by the context of a Will, be con- "survivor" was construed so as to 
 
 strued " others; " also De Oaragnol effectuate the testator's intention. 
 V. Liardet, Id. 608, and the pre- (z) L. R. 17 Eq. 300 ; 43 L. J. 
 
 liminary remarks in the Judgment Ch. 347. 
 
^^® WILLS OF PERSONAL PROPERTY. 
 
 thereof to his daughter C, his grand-daughter E., and his 
 two natural daughters M. and H., to the use of trustees 
 upon trust to pay the income to them in equal shares. 
 Testator then ordered that from and after the death of 
 any one or more of them, then the share of each so dying 
 was to go to the use of their child or children equally as 
 tenants in common in tail, with a clause of accruer on the 
 death of any children without issue to the surviving 
 children as tenants in common in tail. Then comes the 
 material part of the case, " and in default of such issue, 
 then as to the share or shares of such of them, C, E., M., 
 and H., whose issue should so fail, to such uses upon such 
 trusts for the benefit of the survivors, and sui-vivor of 
 them as tenants in common, and their and her respective 
 issue, as hereinbefore declared, touching their original 
 share and shares." Then followed an ultimate limitation 
 to testator's right heirs in fee. By a codicil, the testator 
 revoked the estate in remainder after the death of J. P., 
 as to the shares of C. and E., and directed his trustees to 
 stand possessed of those shares after J. P.'s death, in trust 
 for M. and H. for their lives, and for their children and 
 other issue after their deaths in like manner as in his 
 Will expressed concerning their original shares ; that is to 
 say, to the same uses in favour of the survivor of them. 
 The tenant for life died in 1866. H. died in 1867, 
 leaving one child, a son, J. M., to whom his mother's 
 moiety was paid, under an order of the Court of Chan- 
 cery. M. died in 1873, a spinster. The question then 
 arose as to whether J. M., the only child of H., was en- 
 titled also to M.'s moiety. The Court held that he 
 was, because the word " survivors " here must mean 
 " others." The reported judgment on this point of the 
 case occupies only two lines, but the reason for giving 
 this meaning to the word under the above circum- 
 Exammation stances is plain. If the literal signification of the term 
 ^LmJ^C had been fastened upon it, or in other words, if the gift 
 
 in In re Row's ^^^ heeu read as to the issue of the longer liver of M. 
 JEatate. 
 
OP EXECUTORS AND ADMINISTRATORS. 537 
 
 and H., what would have resulted 1 Simply this, that 
 inasmuch as the longer Zwer, M., died without ever having 
 married, her moiety must have failed because she had no 
 issue to take, but as the other, H., had issue, it was fairly 
 interpreting the language of the Will, to assume the 
 testator's intention to have been that the issue of the 
 other should take in the event of one of the two dying 
 without issue. It is true that in this Will there is an 
 ultimate limitation to the testator's right heirs in fee, but 
 this was meant to take effect only if no issue at all 
 should have survived H. and M. The question in all Intention ia 
 cases similar to this is one of intention, indeed, to use the these cases. 
 language of Lord Justice Turner, in In re Gregson's 
 Trusts (a), "it is the governing question. . . . The law is 
 subordinate to the intention. It comes into force only 
 when the intention has been ascertained." Accordingly, 
 to give effect to a testator's meaning, as collected from 
 the language of his Will, the Court may, as has been re- 
 peatedly held, do all in its power — as by varying words or 
 their meanings — to discover the testator's intention, and 
 make an otherwise irrational Will perfect (6). 
 
 An all-important question often occurs in these cases Period to 
 turning upon survivorship, and that is, at what particular yiTorsMp' 
 period of time are the person or persons answering the de- refers, 
 scription of survivor or survivors to take the property given 
 to him or them as such ? We will put a case on the subject. CHpps v. 
 M. bequeathed to a trustee a sum of money in trust to pay 
 the interest to her hiisband N., for his life, directing that 
 
 Wolcott. 
 
 (a) See supra, n. (y). L. R. 3 Eq. 487 ; 36 L. J. Ch. 
 
 (h) See the cases cited in In re, 573, as [to the meaning of "next 
 
 Row's Estate: Jachson v. Sparks, surviving son," in -which Wood, 
 
 mj.J.Ch. 15; Burryv. Morgan, V.-C, also says, that "without 
 
 L. R. 3 Eq^. 152; 36 L. J. Ch. having issue" must mean "with- 
 
 105 ■ In re Beck's Trusts, 37 L. J. out issue," and also comments on 
 
 Ch. 233 ; Pride v. Fooks, 3 De G. AVbott v. MUdleton, 7 H. L. 68 ; 
 
 & J. 252 ; 28 L. J. Oh. 81, on 28 L. J. Ch. 110, mentioned ante, 
 
 the construction of " child or p. 509. 
 children ; " Eastwood v. Loekwood, 
 
528 
 
 WfLLS OP PERSONAL PEOPEKTY. 
 
 Period of 
 distribution. 
 
 Principle 
 established by 
 Oripps V. 
 WolcoU. 
 
 Marriott t. 
 
 after his death the capital should be divided between her 
 sons 0. and P., and her daughter Q., and the survivor or 
 survivors of them, share and share alike. M. died, leaving 
 her husband and the said three children surviving. 0. died 
 in N.'s lifetime, and then N. died, leaving P. and Q, sur- 
 viving, the latter of whom claimed a moiety of the stock 
 purchased by M.'s gift. The question was to what period 
 the survivorship related— to the death of M., the testatrix, 
 or to that of N., the tenant for life. Sir John Leach, M. E., 
 in deciding that the period here was on the happening of 
 the latter event, said : " It would be difficult to reconcile 
 every case upon this subject. I consider it, however, to 
 be now settled, that if a legacy be given to two or more 
 equally to be divided between them, or to the survivor or 
 survivors of them, and there be no special intent to be 
 found in the Will, then the survivorship is to be referred 
 to the period of division. If there he no previous mterest 
 given in the legacy, this period of division is the death 
 of the testator, and the survivors at his death will take 
 the whole legacy." This was the authoritative case of 
 Oripps V. Wolcott (c), which establishes the principle that 
 in dispositions of personalty words of survivorship are to be 
 construed as referring to the period of distribution (d), 
 which, when no life tenancy exists is at the testator's 
 death ; but when a life tenancy does precede the gift, 
 survivorship relates to the time of the death of the person 
 holding it. 
 
 The case cited below (d), after a " painful conflict of 
 authorities quite irreconcilable," may be said to have al/most 
 established the same rule in regard to realty (e) ; but if 
 this be not so as to real estate, most certainly it is settled 
 
 (c) i Madd. 11. 
 
 (d) Per Lord Justice Turner, in 
 /to re Gregson's Trmts, i De G. J. 
 & S. 428 ; 34 L. J. Ch. 41, where 
 his Lordship says that the question 
 in all these cases is " purely and 
 simply one of intention." 
 
 (c) See the remarks of Malins, 
 V.-C, in Marriott v. Abell, L. K. 
 7 Eq. 478 ; 38 L. J. Ch. 451 ; 
 following CWfips T. WolcoU; see, 
 however, Taaffe v. Conmee, 10 H. 
 L. Gas. 64. 
 
OF EXECUTORS AND ADMINISTRATORS. 529 
 
 as to personalty^ where there is a preceding life interest or 
 one for years in the gift, and then it is to go to a class, 
 for in that case " survivor," as a rule, refers to the time of 
 death of the tenant for life. 
 
 It will have been remarked in Gripps v. Woloott, that the Cripps v. 
 gift is one of a very plain character, unencumbered with trasted with 
 provisoes as to dying with or without issue, the substitution ^^^^^ 
 of one legatee for another, and so forth. Accordingly, it is goes over, 
 to be distinguished from cases where these contingencies 
 have to be taken into account. Here is one of this class, Ive v. King. 
 and which may be thus shortly stated (/) : — A., by his 
 WiU, dated in 1819, after making his wife tenant for life 
 of certain realty &c., gave a moiety of his personal 
 residuary estate to be divided into five equal shares, 
 which were to be given to B., C, D., E., and F., and in 
 case of the death of any of them before G., then their 
 several shares to go to their respective husbands or wives, 
 if any, and if not, then to their respective children ; and in 
 failure of children, then to the survivors of them, share 
 and share alike. The other moiety, after a small legacy, 
 he gave equally between L., M., N., 0., P., and in case of 
 the death of any or either of them, then their respective 
 shares to their children, if any, and if not, then to the 
 survivors of them, share and share alike. The testator 
 died in 1837, and his widow in 1849. 
 
 The five legatees of the first moiety of the residue were 
 all living at the date of the Will, but three of them, B., C, 
 F., predeceased the testator, leaving children, six of whom 
 were living at the date of the suit, and were defendants in it. 
 The two other legatees, D. and E., survived the testator, 
 but died before the tenant for life, leaving children, seven 
 of whom were also defendants in the suit. Of the five 
 chief legatees of the second moiety of the residue, one had 
 died before the date of the Will, L., leaving four children, 
 also parties to the cause ; two other legatees, M. and N., 
 
 (/) Ive V. Eimg, 16 Beav. 46 ; 21 L. J. Ch. 560. (1852.) 
 
530 
 
 WILLS OF PERSONAL PROPEETY. 
 
 Point of di- 
 vergence 
 between Ive v. 
 King and 
 cases like 
 Cri/ppsy. 
 Wolcott. 
 
 Gift in Im 
 V. Kmg not to 
 a class to be 
 ascertained at 
 a particular 
 time. 
 
 Distinction 
 between differ- 
 
 died in the lifetime of the testator, the one without issue 
 and the other leaving children, two of whom were living at 
 the date of the cause, who were defendants': one only of the 
 original five survived the tenant for life, 0. It is obvious, 
 said Sir John Eomilly, M. R., in his instructive judgment 
 on this complicated-looking case, therefore, that there are 
 four classes claiming as legatees, and a fifth class claiming 
 the undisposed of personal estate, as next of kin of the 
 testator. The first class is that of the legatees who sur- 
 vived the tenant for life. This is confined to one person, 
 0. The second class consists of the children of the 
 legatees, who themselves survived the testator, but died 
 during the Hfe of his wife, D., E. and P. The third class 
 consists of the children of the legatees who died before 
 the testator, B., C, F., and N. The fourth class consists 
 of the children of a legatee named in the Will, but who, 
 in fact, was then dead, L. His Honour, first deciding that 
 the original legatees took as tenants in common and not 
 jointly, decreed 0. to be entitled to one-fifth of that 
 moiety of the residue of which he was named a legatee. 
 He next held that the children of those legatees who did 
 not survive the tenant for life, but who would have taken 
 had they done so, were entitled to their parents' shares, 
 a statement which seems to bring us to the point at which 
 Ive v. King diverges from cases of that character of which 
 Cripps V. Wolcott is the representative. The Master of 
 the Rolls then goes on to illustrate and distinguish the 
 principle applicable to each of the orders, in terms 
 which we will here summarise. The original gift, he 
 said, was not to a class of persons to be ascertained at 
 any particular period, but was one of two moieties of a 
 residue, each of which was given to five specified lega- 
 tees, with a direction that if any one should have died, 
 the husband or wife of the deceased should take the 
 legatee's share, or if no husband or wife should be living, 
 then that the respective children of the legatees should 
 take the legatee's share. " The distinction which is to be 
 
OF EXECUTORS AND ADMINISTRATORS. 
 
 531 
 
 found in cases of this description is to this effect : — If a ent orders of 
 testator gives a legacy to a class of persons, such as the 
 children of A., then goes on to provide that in case of the 
 death of any one of the children of A., before the period 
 of distribution, the issue of such child shall take their 
 parents' share, such issue cannot take unless the parent 
 might have taken, and consequently if a child of A. be 
 dead at the date of the Will, or at the death of the 
 testator, the issue of that child cannot take anything. 
 This was the principle of Peel v. Catlow, (g), Waugh v. 
 Waugh (h), and Ghristopherson v. Naylor (i). But if the 
 original legacy is not to a class, but to a person named, 
 with a direction that in case of the death of the legatee 
 before payment, the legacy is to go over to another 
 person, although the death of the legatee occurs before 
 the death of testator, the gift over takes effect, upon the 
 
 {g) 9 Sim. 372 ; 7 L. J. Ch. 
 273. 
 
 (h) 2 Myl. & K. 41 ; 6 L. J. Ch. 
 176 ; but see Zoring v. Thomas, 1 
 Drew. & Sm. 497, 521 ; 30 L. J. 
 Ch. 789, 795, where Kindersley, 
 V.-C, speaks of Waugh Y. Waugh 
 as no longer an authority. 
 
 (i) 1 Mer. 320, decided by Sir W. 
 Grant, M.E., inl816. This case has 
 been successively approved of and 
 doubted by learned judges in a, 
 somewhat singular manner. Thus, 
 in the text, we see Sir John EomUly 
 following it, also Vice-Chancellor 
 Kindersley in fiormg. v. Thomas, 
 supra ; but iu Parsons v. ChilKford, 
 10 Jur. (N. S.) 221, V.-C. Stuart 
 disapproves of it. Again, in In re 
 Potter's Trusts, L. R. 8 Eq. 52 ; 29 
 L. J. Ch. 102, V.-C. Malins does 
 the same ; but subsequently, in In re 
 EotchMss's Trusts, I-. E. 8 Eq. 643 ; 38 
 L. J. Ch. 631, V.-C. James doubts the 
 soundness of In re Potter's Trusts, 
 and apparently approves of Ghristo- 
 pherson V. Naylor, which was also 
 
 followed by Lord Hatherley, C, ia 
 Oowling v. Thompson, 16 W. E. 
 1131. In Mall v. Woolley, 39 L. J. 
 Ch. 106, V.-C. MaKns states that 
 In re Potter's Trusts was approved of 
 in III re HotchMss's Trusts I Thus, 
 so far, we seem to have that state of 
 things which V.-C. James in the 
 latter case condemns, namely, "con- 
 flicting principles laid down in co- 
 ordinate branches of the Court," 
 than which, as he remarks^ "no- 
 thing could be more unseemly." 
 We should add, however, that in 
 Adams v. Adams, L. E. 14 Eq. 
 246, In re Potter's Trusts was fol- 
 lowed, and although these oases 
 were distinguished in Swnter v. 
 Cheshire, L. R. 8 Ch. 751, they 
 were not disapproved. A decision of 
 the same learned judge who decided 
 In re Potter's Trusts was upheld, 
 L. J. James declining to reconcile or 
 distinguish the case and Ghristo- 
 pherson V. Na/ylor, which we will 
 allude to in the text presently. 
 
 M M 2 
 
 Fluctuation of 
 opinion con- 
 cerning Ghris- 
 topherson V. 
 Naylor. 
 
53^ 
 
 WILLS OF PERSONAL PROPERTY. 
 
 presumption that such ulterior legatee was substituted in 
 order to prevent a lapse of the legacy. This is decided in 
 Miller v. Warren (k), Barrel v. Molesworth {I), Haughton 
 V. Harrison (m), and Maekinnonv. Peach (n). It is this 
 latter principle which applies to the cases of this Will, 
 and the terms of this residuary bequest bring it within 
 the case of Le Jeune v. Le Jeune (o). . . . In every case 
 where the testator specified some individual legatee who 
 was alive at the date of the Will, but who had died before 
 the termnt for life, leaving children who survived the 
 latter, in all these cases the children of the legatee are 
 entitled to take the share which the legatee would have 
 taken if then living." 
 Decision in His Honour held that the children of those legatees 
 
 who would have taken if they had survived the tenant for 
 life, were entitled to their parents' share ; that the gift to 
 L., who was dead at the date of the Will, passed her share 
 to her children who were living at the death of the tenant 
 for life ; that the legal personal representative of a son of 
 one of the legatees, C, was entitled to participate with 
 the other children of the legatee ; that the children of a 
 deceased legatee took vested interests in the parents' 
 share whenever the class of those children was to be 
 ascertained ; and that upon the death of M., one of the 
 legatees of the second moiety, in the life of the testator, 
 the other legatees then living took vested interests in his 
 share. 
 
 With regard to the children of L., who, as we see, was 
 dead at the date of the Will, the Master of the Rolls said 
 that he was unable to draw any distinction between the 
 case of a gift to a person — ^known by the testator to be 
 alive — and in the event of his death to his children, and 
 between that of a gift to a person supposed or believed by 
 the testator to be alive, but who in fact was dead, such gift 
 
 Qc) 2 Vera. 207. (») 2 Keen, 555 ; 7 L. J. Ch. 
 
 (Z) Ibid. 378. 211. 
 
 \m) 2 Atk. 329. (o) 2 Keen, 701. 
 
OF EXECUTORS AND ADMINISTRATORS. 53S 
 
 being followed by one over to his children in the event of his 
 death (p). The cases, he said, which show that L.'s chil- 
 dren would be entitled under the bequest to L. if she had 
 died the day after the Will was made, apply equally to 
 the case of her dying the day before ; and consequently 
 that those of her children who survived the tenant for life 
 were entitled to the share which L. would have taken had 
 she done the same (q). 
 
 In a case of a more recent date (r), before the same Sdbgen v. 
 learned Judge, the facts were these : — A testator directed 
 his residue to be divided at the death of his wife, who 
 survived him, equally between his brothers and sisters by 
 name, and declared that, if any of them should die leavi/ng 
 issue, his, her, or their shares should go to his, her, or 
 their respective issue. Here, the testator leaves his pro- 
 perty to five persons, and in case of their death with chil- 
 dren, then to them. Some of the testator's brothers and 
 sisters died in his lifetime, leaving children and remoter 
 issue who survived him, but did not all survive the tenant 
 for life, the widow ; and of those children, some had issue 
 born after the death of the testator. All the testator's 
 brothers and sisters who survived hi/m died in the lifetime 
 of the widow, one of them without issue, the others leaving 
 children and remoter issue, who did not all survive the 
 tenant for life. On the death of the latter, the question 
 arose as to how the fund was to be divided. Lord RomUly 
 held : (1) that the class was to be ascertained as to the DeoiBion. 
 issue of a legatee who had died before the testator, at his 
 death, and as to the issue of a legatee who had survived 
 him, at the death of that legatee; (2) that the members of 
 
 {p) As to a testator making a decease of a tenant for life, stould 
 
 Will in favour of a person whom he take, although M. H. had died in 
 
 knows to be dead, see Stringer v. the lifetime of the testatrix and the 
 
 Oardmer, ante, p. 606, n. (o). tenant for life. In re Potter's 
 
 (g) Ooulthurst v. Carter, 15 Trusts, L. E. 8 Eq. 52 ; 39 L. J. 
 
 Beav. 421 ; 21 L. J. Ch. 655, Ch. 102. 
 
 where itwas held that a gift amongst (r) Hobgen \. Neale, L. R. 11 
 
 the children of M. H., living at the Eq. 48 ; 40 L. J. Ch. 36. 
 
534 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Ive T. King 
 not doubted. 
 
 In re Potter's 
 Trusts. 
 
 Qnestions in 
 the case. 
 
 each class, whether children or remoter issue of the lega- 
 tee, took per capita (a), that is to say, in their own right, 
 share and share alike; and (3) on the authority of the 
 case cited below (t), they took as joint tenants. His lord- 
 ship, in this case of Hohgen v. Neale, was asked to re- 
 consider his judgment in Ive v. Ki/ng ; but he stated that, 
 in addition to believing it to be a correct decision, he bad 
 gone through it very carefully, and had also looked at the 
 various authorities, and finding Ive v. Kvng nowhere dis- 
 sented from, declined to depart from the principles there 
 laid down. This brings us to consider the difficult case of 
 Potter's Trusts, alluded to on the previous page, and in the 
 note at page 531, and with this we wUl examine that un- 
 fortunate case of Christopherson v. Naylor, which appears 
 to have given so much trouble to our Ifeamed judges. 
 
 G. Potter, by Will dated 1834, gave the residue of his 
 real and personal estate upon trust to Ehzabeth K. for 
 her life, and subject thereto — in the events which hap- 
 pened — as to one-fourth share thereof for his nephews 
 and nieces, the children of his sister M., in equal shares 
 as tenants in common ; and in case of the death of any of 
 his said — observe this word — nephews and nieces leaving 
 issue, then he directed that such issue should take the 
 share that his or her or their deceased parent would have 
 taken if living. The tenant for life died in 1865. M. had 
 had twelve children, some of whom had died leaving issue, 
 others without issue, before the date of the Will; some 
 died in the lifetime of the testator, but after the date of 
 the Will, leaving issue ; others survived the testator. The 
 great question here to be decided was, whether the issue 
 of the nephew or niece (1) dying before the date of the 
 Will, (2) after the date of the Will, but before the death 
 of the testator, could take. It was not, nor of course 
 could have been disputed, that the issue in this case was 
 
 («) We shall refer again presently 
 to this term and the associated term, 
 per stirpes. 
 
 {t) In re Hodgson's Trusts, 
 Kay & J. 178. 
 
OF EXECUTOES AND ADMINISTRATORS. 535 
 
 substituted for the parent, in the event of any nephew or 
 niece surviving the testator, but dyi/ng in the lifetime of 
 the tena/nt for life. But there are seen two classes of 
 pei-sons who died before the period of distribution, namely, 
 those nephews and nieces who were dead at the date of 
 the Will, and the nephew who was alive at the date of 
 the Will, but died in the testator's lifetvme. Accordingly, 
 it was argued that in the case of this nephew, who left Aigaments. 
 issue, that issue could not take, and d, fortiori that the 
 issue of those nephews and nieces who were dead at the 
 date of the Will, could not take. Vice-Chancellor Malins, Judgment, 
 however, said that, " On the reason of the thing, my con- 
 clusion is that wherever there is a gift to a class, with a 
 gift by substitution to the issue or children of those who 
 shall die, the children take what their parents, if livi/ng at 
 the testator's death, would have taken, without regard to 
 the question whether the parents died before or after the 
 date of the Will, unless a contrary intention is shown." 
 This view is certainly in accordance with justice and com- 
 mon sense, and will, unless impeached, accomplish the 
 wish of the Vice-Chancellor expressed by him in com- 
 mencing and concluding his judgment, namely, to put the 
 law as to these cases " on something like a rational basis." 
 We must also agree with the learned Judge when he says EiJes of 
 that, " I am afraid the rules so long acted upon have had criticised, 
 the effect, not only of defeating the intention, but of being 
 repugnant to and creating an obstacle to what I may call 
 the rational construction " (w). 
 
 (m) With, this statement may he believe to have been the intention 
 
 read the language of a great judge of the testatrix ; hut 1 am hound 
 
 and master of Equity jurisprudence by the authorities, and I cannot 
 
 uttered in the year 1849, when help myself." Per Knight-Brnce, 
 
 having to apply a certain rule of V.-C, in Dwvjes v. Thorns, 8 De 
 
 construction with regard to the G. & S. 347; 18 L. J. Ch. 212. 
 
 non-exercise of a power. "I must See amfe, pp. 499-502. It is not too 
 
 decide that the Power has not been much to hope that observations, 
 
 exercised. Such' a decision is, I similar to that quoted above, of the 
 
 am almost ashamed to say it, eminent jndge, will not often again 
 
 against what I firmly and sincerely be heard from the bench of this 
 
535 
 
 WILLS OP PERSONAL PEOPERT^S. 
 
 Decision in 
 In re Potter's 
 Trusts. 
 
 Ch/ristaphersan 
 V. Nayhr. 
 
 TLe decision in In re Potter's Trusts, then, was that 
 the children of all the nephews and nieces who died in the 
 testator's lifetime should take what their respective 
 parents would have taken, if Uving at his death. 
 
 Christopherson v. Naylor {x) was this : — " to each and 
 every of the child and children of my brother and sisters, 
 J., K., M., and T., which shall be living at my decease. . . . 
 But if any child or children of my said brother and sisters, 
 or any of them, shall happen to die in my lifetime, and 
 leave any issue living at, or born in due time after his or 
 her or their decease, then the legacy or legacies intended 
 for such child or children so dying shall be in trust for 
 his, her, or their issue ; such issue taking only the legacy 
 or legacies which the parent or parents would have been 
 entitled to if Uving at my decease." M. died during the 
 lifetime of the testator, leaving three children, all of whom 
 died before the testator had made his Will ; but they left 
 issue, who claimed to participate in the bequest in right of 
 their parents. The question here was whether, as their 
 parents were dead at the date of the Will, they, the 
 children of the original legatees, could claim their parents' 
 share. Sir W. Grant, M.E., held that they could not, because 
 none but children of those primary legatees who were living 
 at the date of the Will had any interest in the bequest ; 
 the gift to their issue was intended to be merely substitu- 
 tionary of that to the primary legatees, an intention which 
 
 and not as are the rules of public 
 positive law. TKe former are de- 
 vised as mere guides for convenience 
 and uniformity ; they concern pri- 
 vate individuals and private in- 
 terests only, and if departed from 
 or modified to effectuate a testator's 
 intention, that can affect no one, 
 or, at any rate but few, injuriously, 
 (x) 1 Mer. 320, and see 1 Eop. 
 31, where the cases bearing on the 
 distinction between a gift by sm5- 
 stituii&n and a suistarUive gift are 
 noticed. 
 
 country. Of course no intention is 
 here entertained of decrying rules 
 of construction. That would be 
 absurd ; they must of necessity 
 exist, and their utility is obvious. 
 (See ante, pp. 490, 496 ; the judg- 
 ment of James, L. J., in WaJee v. 
 Varah, ante, p. 525, n. {y), and 
 that of Jessel, M.R., in Metcalfe v. 
 Butchmson, 45 L. J. Oh. 210, as to 
 the true use of rules of construc- 
 tion ;) but these, it is submitted, 
 should be appKed with due regard 
 to the circumstances in each case, 
 
OF EXECUTORS AND ADMINISTRATORS. 587 
 
 necessarily excluded the issue of such as were dead when 
 the Will was made. " This decision," says Vice-Chan- 
 cellor Malins, " stamped with the authority of Sir W. 
 Grant, seems for some years to have been uniformly 
 followed. Though I, in common with the whole -profes- 
 sion, entertain the most profound respect for that eminent 
 judge, and for his great authority on questions of construc- 
 tion, I feel bound to say that I am happy to find that at 
 length judges have emancipated themselves from th;it 
 decision as erroneous, and have put the whole matter on 
 the footing of the intention." The rule then, in cases of 
 this kind, would now seem to be that whether the gift 
 be to a class or to individuals, with a substitutionary 
 gift over to the issue of any who shall die, the issue 
 take what the parent would have taken, if living at 
 the testator's death, and that it will make no difference 
 whether the parent died before or after the date of the 
 Will ; the testator's intention, however, to be paramount 
 under all circumstances. 
 
 It has often been a question for the Court of Construe- whether a 
 tion in these cases of survivorship, whether a gift shall ^ *". ™'^' 
 
 . . , , vivor IS to 
 
 vest absolutely in some survivor, or whether he shall take vest ahsolutely 
 it only by limitation; in other words, whether on the tolh^UaS* 
 happening of a specified event, he acquires the whole in a Will. 
 right to his gift, or only a life interest with a remainder 
 over. Of this kind was the case of Bowers v. Bowers (y), Bowers v. 
 of which the facts were shortly as follows ; — The tes- -^<""'^*- 
 tator gave an im/medAate (z) gift to four residuary legatees 
 by name, in equal shares, with benefit of survivorship in 
 case any of them should die without issue ; and iu case 
 any of them should die leaving children, then the share, 
 whether original or accruing, of each so dying, should 
 go to such children. All the original legatees survived 
 
 (y) 8 Eq. 283 ; 38 L. J. Ch. S96 ; 388 ; 44 L. J. Ch. 55, tat the rule 
 
 reversed, L E. 5 Ch. 244 ; 39 L. J. which is applicable in cases like 
 
 Ch. 351. Bowers v. Bowers, where the gift is 
 
 (s) As to a future gift, see In- immediate, is the same where the 
 
 gram v. Soutten, L, R. 7 H. L. gift is future. 
 
538 
 
 WILLS or PERSONAL PROPERTY. 
 
 Judgment of 
 the Court of 
 Appeal in 
 Bowers v. 
 Bowers, 
 
 Court leans to 
 construing a 
 bequest to be 
 rested. 
 
 Life interests 
 ■with re- 
 maindei^. 
 
 the testator, and three of them had children, who were 
 made parties to a bill in Chancery, filed for administration 
 of the testator's estate ; and the question was whether the 
 four legatees took absolutely, or life estates only with re- 
 mainder to their children. Vice- Chancellor Malins said, 
 that if the gift in this Will had stopped before the men- 
 tion of survivorship, the gift would unquestionably have 
 been absolute, and Lord Hatherley, C, in the Court of 
 Appeal, appears to have concurred with the Vice-Chan- 
 cellor so far. But the latter had gone on to say, that the 
 succeeding words of the gift — "in case any of them 
 should die without issue " — meant nothing more than to 
 indicate the desire of the testator to prevent a lapse in 
 the event of a child dying in his own lifetime without 
 issue. He therefore held, that the four original legatees, 
 having survived the testator, had become indefeasibly and 
 absolutely entitled to their shares. The testator's grand- 
 children, having appealed from this decision, the full 
 Appellate Court reversed it, and held the original legatees 
 not indefeasibly entitled, but that they took subject to 
 the limitations of the Will. 
 
 Lord Hatherley, C, while admitting the doctrine of the 
 Court to be in favour of construing a bequest as vested 
 and against postponing the absolute enjoyment thereof, 
 observed, however, that the principle in question was 
 applicable only in the absence of words in a Will leading 
 to an opposite conclusion, and that the leaning of the 
 Court could not control the plain meaning of the words 
 employed. His lordship said, that there being no reference 
 made in the instrument before him to the testator's death, 
 he considered it to be a very forced construction to say 
 that the words as to dying without issue were intended 
 merely to prevent a lapse. Whatever doubt or difSculty 
 he might have felt if the Will had stopped short at the 
 end of the first clause, was clearly removed by the second ; 
 accordingly, the original legatees took life interests only 
 with remainder to their children. From the judgment 
 
OP EXECDTOBS AND ADMINISTEATOES. 539 
 
 of Lord Hatherley, we learn that the Court will not Thataprovi- 
 readily construe a testamentary gift which is to go over in tytestator to 
 the event of the death of the donee thereof, in the donor's prevent lapse 
 lifetime, as simply a provision made by a testator to pre- 
 vent a lapse of the gift ; indeed, that the Court will npt 
 resort to such a construction unless none other is possible. 
 In a gift by Will to A., and in case of his death — which is 
 of course a positive certainty — then to B., this construc- 
 tion would be necessary, because as A.'s death at some 
 time or another is certain, the Will mentioning no 
 particular time, we may assume that the death of A. 
 in the testator's lifetvme must be meant. If, however, 
 there should be a gift to A., and in the event of his 
 dying without issue — which is a mere contingency — then 
 to B., in such case no necessity arises, when construing a 
 bequest of this kind, to fix a time for that event to take 
 place. It is seen that death, being an absolute certainty in 
 all cases, except where some paiiicular date is fixed for it 
 to occur, the having issue is on the other hand a mere 
 contingency, so that where a testator mentions two events, 
 upon the happening of which something else is to happen, 
 and one of these is sure to occur, although on no fixed 
 day, and the other may never occur at all, the contingency 
 has reference not to the death of the testator, but to that 
 of some other person according to circumstances. Thus, 
 in a gift to A. — without any limitation of interest — and if 
 he should die leaving lawful issue then to such issue, here 
 are two things to happen : first, his death, which must 
 take place, and when it does, then the gift goes to his 
 issue — if — secondly — he has any, which is clearly a con- 
 tingency. To what then does this circumstance refer, the 
 death of A. or that of the testator ? This is the case of 
 Oosli/ng v. Townshend (a), in which Sir J. Eomilly, M.R., 
 held that the contingency was referable to the death of 
 A., who therefore took no absolute interest. 
 
 The cases just mentioned will show the principles 
 (a) 17Beav. 245 ; affirmed by Lord Cranworth, C, 2 W. E. 23. 
 
540 WILLS OP PERSONAL PROPERTY. 
 
 which guide the Court in dealing with clauses of substi- 
 tution in Wills ; they are useful also for the purposes of 
 an elementary treatise like the present, as exemplifying 
 the modus opera/ndi resorted to for unravelling masses of 
 intricately associated circumstances, which so often puzzle 
 even those accustomed to deal with such matters. 
 
 Fonrth case 4. We must now consider the last of the four cases men- 
 
 at p 515 . 
 
 considered. tioned at page 515, which is this : — A gift of personalty 
 
 to B. for life, with remainder to C. absolutely, and should 
 
 C. die under age, or unmarried, or without issue, then to 
 
 D. (6). To discover the principle of construction here, we 
 must examine one or two other cases which lead up to 
 this one. First, take that of a legacy to A., and if he 
 shall die then to B. The gift to A., it is perceived, is ab- 
 solutely given, but it is also to be absolutely taken away 
 from him at his death, if that happens in B.'s lifetime. 
 To avoid this repugnancy, then, we must — as stated by 
 Lord Cairns in O'Makoney v. Burdett, and following the 
 rule laid down by Sir John Romilly, M.R., in Edwards v. 
 Edwards (c) — read, "if he shall die," or "in case of 
 death," as meaning in case of A.'s death before the in- 
 terest vests in him. Such vesting can, of course, take 
 place only by A. surviving the testator, and if this hap- 
 pens, A. is absolute master of the gift ; but if A. dies 
 before the testator, that is to say before the gift vests, 
 then, and then only, it goes to B. 
 
 Gift to A., and Where there is a gift to A., and if he shall die without 
 
 if he dies -with- . ^ -,■,,-,. -r, -^ ■ ,, , i 
 
 cut a child, leaving a child, then to B., it is seen that here there is not, 
 then to B. ^g before, a certainty, but a mere contingency referred 
 
 to, as that which is to occur before the gift goes over. 
 
 " In these cases," said Sir John KomUly, in Edwa{rds v. 
 
 (6) This is yirtually the case of these Olivant v. Wright, L. R. 10 Ch. 
 
 O'MaJioney v. Bv/rdeti, decided by 220 ; 48 L. J. Ch. 1, which explains 
 
 the House of Lords in 1874, L. R. the rule established by them. To 
 
 7 E. &L App. 388 ; reported as a the judgments in the above cases we 
 
 note with Ingram v. SouUen {In re are indebted for much of what ap- 
 
 Eeathcote's Triists), L. R. 7 E. & I. pears iu the text. 
 
 App. 408 ; 44 L. J. Ch. 56. Read with (c) 15 Beav. 357; 21 L. J. Ch.324. 
 
OP EXECUTORS AND ADMINISTRATORS. 541 
 
 Edwards (d), " it has always beeu held, if at any time, 
 whether before or after the death of the testator, A. died 
 without leaving a child, the gift over takes effect, and the 
 legacy vests in B. ; this is best established by the case of 
 Farthing v. Allen " (e). 
 
 In the case which we have to consider, there is a pre- where there is 
 ceding life estate, with a remainder over in the event of ?if"^^°?^°^ 
 certain specified circumstances occurring ; accordingly, it is 
 in form different from the other cases which we have been 
 considering. The facts in O'Mahoney v. Burdett were 0'Mahomy\. 
 shortly these : — A., by her Will, dated in 1840, gave to B., 
 her sister, a widow, the sum of £1000 for her life, and after 
 her death, to B.'s daughter, C, and if C. should die un- 
 married, or without children, then the £1000 was to 
 " revert " to D. Burdett was the executor and residuary 
 legatee of the testatrix. B. died before 1858, and D. died 
 in the lifetime of the testatrix. C. married O'Mahoney, 
 and assigned her legacy by way of settlement to trustees 
 in trust to pay her the income thereof for her separate 
 use for life, and after her decease to her husband, the 
 appellant in the case. The capital was to go for the issue 
 of the marriage, or in default of issue, to the survivor of 
 them, the said C. and her husband. C. died in 1871, 
 never having had any children, and the' question was,' 
 whether her interest in the £1000 should be considered 
 absolute, or a life interest only, she having survived both 
 
 {d) Supra. Lord Cairns, in ness, and A. would take absolutely, 
 
 O'Mahoney v. Burdett, agrees with unless a contrary intention could he 
 
 this statement ; but see his Lord- distinctly gathered from the rest of 
 
 ship's observations. the "Will. Camdy v. Campbell, 2 
 
 («) Reported 2 Jarm. on Wills, CI.. & F. 421, followed in J?tsAer v. 
 
 688. N.B. It is important hereto Webster, L. R. 14 Eq. 283; 42 L. 
 
 mention, that if a gift, either of J. Ch. 156. See amfe, as to the 
 
 realty or personalty, is made to A., meaning of "issue," p. S14. In a 
 
 and on failure of issue, or if he gift of personalty to A. and B., and 
 
 should die without 4ss™, then to B., the issue of th^ir bodies lawfully 
 
 in such case, as an indefinite failure begotten, this expression would be 
 
 of issue is pointed at, or a failure of deemed tantamount to the simple 
 
 issue at any time, the gift over one "children." 
 here would be held void for remote- 
 
542 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Decision of the 
 Court of Ap- 
 peal inlreland, 
 
 affirmed by 
 the Hotue of 
 Lords, 
 
 Judgments, 
 
 Besult of tlie 
 cases of tMs 
 
 Ingram T. 
 
 the testatrix and the tenant for life, her ^wn mother. The 
 Court of Appeal in Ireland having held that the bequest 
 to C, was defeasible in the event of her dying unmarried, 
 or -without children, Mr. O'Mahoney appealed to the 
 House of Lords, grounding the arguments in support of 
 his claim upon the authority of Ed/wards v. Edwards (/). 
 Lord Cairns, C, and Lords Hatherley and Selbome, unani- 
 mously concurred in dismissing the appeal, holding that 
 one of the contingencies upon which the absolute gift to 
 
 C. depended having happened, namely, her having died 
 without children, and that the gift intended to revert to 
 
 D. having lapsed by reason of his death in the lifetime of 
 the testatrix, the residuary legatee was entitled to take 
 all that D. would have taken had he survived the testa- 
 trix. " The benefit intended for the nephew appears to 
 me," said Lord Cairns, "to be introduced through the 
 medium of an executory limitation over after enjoyment 
 by a previous taker, and not as an alternative gift to take 
 effect, if at all, before the period of enjoyment commences." 
 
 The result is, then, in cases of executory gifts over, that 
 it matters not whether the bequest is to A., and he failing 
 to have children, to B., or whether it is to A. for life, 
 with remainder to B., and if he dies without children to C. ; 
 the absolute interest of A. in each case is defeasible by 
 the executory gift over when the contingencies happen 
 which cause it to shift, and the words " dying without 
 issue," or "without having issue," in the latter class of 
 bequests, cannot be construed as pointing to a death before 
 the tenant for life. 
 
 Here is another case to which allusion has previously 
 been made at p. 501 : — A. gave a legacy to B. for life, 
 with remainder to C. for life, with remainder to their 
 children, and in default of such children, to A,'s two sons, 
 with remainder, in case they should respectively die with- 
 
 (/) WMcli, as before stated, so 
 far as regards what is designated 
 its " fourth rule," was disapproved 
 
 in Ingram v. Soutten, and also in 
 the case cited above in the text. 
 
OF EXECUTORS AND ADMINISTKATOKS . 543 
 
 out issue living at their deaths, to B., " absolutely; " and in 
 case B. should die without issue living at the time of her 
 death, then over, in trust for such one or more of the 
 daughters of his brother-in-law as should be living at the 
 time when the trusts before declared should end, equally 
 to be divided between them. B. having survived A., 
 as well as all the testator's sons and daughters, every 
 one of whom died without issue, she herself also died 
 without issue, although she had been married, and at her 
 death left surviving her a daughter of one of the tes- 
 tator's brothers-in-law, one Mrs. Rainer. This lady died 
 immediately after B., having made a Will, and appointed 
 executors. The trustees then paid the said funds into 
 Court, and Mrs. Rainer's executors on one side, presented 
 a petition for the payment of the said funds to them, while 
 B.'s husband on the other side, claimed them in right 
 of his wife. Vice-Chancellor Malins decided that the 
 funds having become vested in Mrs. Rainer, made an 
 order for the payment of them to her executors. This 
 decision was reversed by the Lords Justices of Appeal, but 
 the House of Lords overruled that of their Lordships in 
 the Court below. The case just set out is that of Ingram 
 v. Soutten (g), one which might be supposed to be of too 
 plain a character to have led to so much litigation. The 
 most difficult point probably in the case, arose from the 
 testator's use of the word "absolutely" in his gift to B., "Absolutely," 
 
 ■' T r- f '^"^ construed 
 
 and it was not unnaturally argued, that the foi'ce of so in such cases 
 emphatic a word needed the use of another equally so to 
 destroy its effect. It will be seen, however, that the tes- 
 tator immediately proceeded to say, that in case B. should 
 die without leaving issue living at her death, ^n the gift 
 was to go over. 
 
 The House of Lords held that thp latter clause meant 
 dying without issue living at the death, at whatever 
 
 (3) L. K. 7 E. & I. App. ; 44 L. L. J. Ch. 259. Eeadwith this case 
 J. Ch. 55 ; reported as In re, Heath- O'Mahoney v. Biirdett. 
 cote's Trusts, L. E. 9 Ch. 45 ; 43 
 
 as that in. 
 text. 
 
■wills or PERSONAL PKOPERTY. 
 
 time that death might take place, there being no other 
 expressions in the Will manifesting anything to the con- 
 trary. Accordingly, as B. actually did die without issue, 
 and as the previous estates had all determined, the gift 
 over took effect.' As to the word "absolutely,"' their 
 Lordships held, that being closely coupled with the sub- 
 sequent proviso as to B.'s dying without issue living at 
 the time of her decease, it was not sufficiently definite or 
 forcible to prevent the gift over taking effect. 
 
 We will now refer to one more term of relationship oc- 
 curring in Wills — "Cousin." This word, in its general sense, 
 means cousins of every description, but in its restricted 
 sense "first cousin," which itself is synonymous withcousin- 
 german (h), both signifying children of an uncle or aunt. 
 
 In the case cited below (i), a testator gave property 
 in trust for all his cousins who should be living at his 
 decease. Stuart, V.-C, held, apparently against his own 
 opinion,but on the authority of a statement in the judgment 
 in Galdecott v. Harrison (fc), that the term would include 
 first cousins once removed — or second cousins. But Lord 
 Cranworth, C, overruled this decision, holding that there 
 being no circumstances or words to indicate the testator's 
 meaning, he should assume, in order to Tpnt a practical con- 
 struction on this Will, that it was intended by the testator 
 to declare trusts capable of being reasonably carried out. 
 The following case is another instance of practical 
 construction made so as to rea,sonahly give effect to a 
 testator's intention. A. left property to "cousins, de- 
 scendants from my father's and mother's brothers and 
 sisters " with a substituted gift to the issue of any dying 
 in testator's lifetime. By a codicil, he excluded by name 
 all lain first cousins, but as his uncles and aunts were all 
 
 (h) Sanderson v. BaUey, i Myl. 
 & Cr. 56, Per Lord Cottenham, C. 
 
 (i) Stoddart v. Nelson, Stwnger 
 V. Nelson, 6 De G. M. & J. 68 ; 25 
 L. J. Ch. 116. 
 
 (k) 9 Sim. 457; 9 L. J. Ch. 
 331. In this case the testator had, 
 however, given to Ms " cousins A. 
 and B." who, as a matter of fact, 
 were first cousins. 
 
OF EXECUTORS AND ADMINISTEATOES. 
 
 545 
 
 then dead, he could not have had any other first cousins. 
 Held, that "cousins" must be construed _/irsf cousins, and 
 that " issue " meant only their children, notwithstanding 
 the language of the codicil (l). 
 
 We have used the terms "first cousin once removed," First cousin 
 and '' second cousin." By the former is meant a child of °^°^ removed. 
 a first cousin, so that if A. and B. are first cousins, and 
 A. has a son C, B. and C. are first cousins once removed ; 
 and in a bequest to " first cousins or cousins-german," of 
 which A. happened to be one, C. would not be allowed to 
 partake (m). 
 
 Supposing in the above case, B. has a son D., then 
 he and C, the son of A., would be second cousins, who Second cousins, 
 will not take with first cousins once removed (n), although 
 if the testator distinctly combine first and second cousins 
 as legatees, all will of course take, second cousins, and even 
 first cousins twice removed (o). 
 
 The relationship mentioned above may be illustrated by 
 a small table, thus : — 
 
 Son. 
 
 H 
 
 Brothers. 
 
 K 
 
 Son, 
 
 L 
 
 Son. 
 1st cousins. /M 
 
 (t) Stevenson v. AUngdon, 31 
 
 305. 
 
 (m) Sanderson v. Bayley, supra. 
 (n) Corporation of . 
 
 Collins, 15 Sim. 541. 
 
 (o) Charge v. Goodyer, 3 
 140 : Judgt. of Lord Lyndlturst, C. 
 
 N N 
 
546 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Second 
 Cousins. 
 
 ■Cross remain- 
 ders or limi- 
 tations. 
 
 How created.' 
 
 Devise of 
 
 estates to A. 
 and B. 
 
 From this it is seen that, persons standing to each other 
 in the relationship of second cousin- — that is, as cousins 
 in the second generation — must have a common great- 
 grand parent. If TSI. or 0. each had children, these would, 
 as between themselves, be third cousins ; as to the common 
 ancestor, great great' grandchildren ; but as to L. and 
 M., they would be first cousins twice removed — and so on. 
 
 In connection with subjects previously treated of, we 
 will now mention one or two matters concerning the con- 
 struction of Wills, which, although appertaining more 
 perhaps to those of realty, can hardly be omitted alto- 
 gether from a treatise like the present. These are (1) 
 Cross remainders ; (2) what is called the rule in Wild's 
 Case ; and (3) that in Shelley's Case. A cross remainder 
 is defined to be a species of remainder created out of a 
 tenancy in common. When lands are given to two or 
 more, as tenants in common, it frequently happens that a 
 particular estate is limited to each of the grantees in his 
 share, with remainders over to the other or others, — as if a 
 man devises lands to his two children as tenants in common 
 in tail, and directs that upon failure of the issue of one of 
 them, his share shall go over to the other in tail, and 
 vice versa. Such ulterior estates as these are called cross 
 remainders, because each of the grantees has reciprocally 
 a remainder in the share of the others. 
 
 They may be created by Will or deed ; if by the former 
 they may arise by implication, where the language is not 
 definite, but in a deed this is not so, for the terms in the 
 latter instrument are required to be such as expressly create 
 the limitations, and therefore cross remainders when im- 
 properly created by deed can never be implied (p). 
 
 Again, if a devise is of Black-acre to A., and of White- 
 acre to B. in tail, and if they both die without issue, then 
 to C. in fee ; here A and B. have cross remainders by 
 
 (p) 1 Steph, Comm. 358, 5tli ed. 
 But no implication as to cross 
 remainders may devest an interest 
 
 already vested ; SabbetJi v. Squire, 
 4 De G. & J. 406 ; 28 L. J. Ch. 
 565, afflrining the M.R. 
 
OF EXECUTOES AND ADMINISTRATORS. 547 
 
 implication, and on the failure of tlie issue of either, the 
 other or his issue will take the whole property (q). 
 
 It is stated in previous portions of this book, that the Kemainder. 
 word reynainder, though not strictly speaking applicable 
 to personal estate (r), is yet frequently employed with re- 
 gard thereto. As something tantamount to a remainder is 
 allowed to be created in personalty, so cross remainders 
 or, more correctly speaking, cross limitations, may, in like 
 manner, arise from the dispositions contained in a bequest. 
 The following recent case, decided in 1872, by the Lords Illustrative 
 Justices of Appeal, will show in the first place how the prin- 
 ciples as to cross remainders in realty may be analogously 
 applied to limitations contained in a Will of personalty, 
 and also illustrate the doctrine of imphed cross remain- 
 ders is). The material part of the instrument was this : — 
 " And as to the remaining interests and dividends of my 
 estate and effects, upon trust to pay and apply the same 
 equally between my daughters — C, E., and F., — during 
 their respective natural lives ; and if all, any, or either of 
 them shall depart this life leaving issue, then in trust, to 
 pay and apply one equal part, share, or proportion of the 
 principal of my said residuary estate and effects, corres- 
 ponding with the number of my said present and future 
 daughters, unto and amongst the issue of each of them that 
 shall happen to die leaving issue, in equal shares and> propor- 
 tions ; and if only one of such daughters shall die leaving 
 issue, then to pay and apply the whole residue of my said 
 estate and effects to, or equally amongst the issue of such 
 one daughter; but if all die without issue," then to, &c., &c. 
 
 Testator died in 1820, leaving only the three children pacts. 
 named in his Will. C. having married, died in 1844, 
 leaving four children, all of whom attained the age of 
 
 {q) 2 Black. Comm. 381. terest in the gift, no entail being 
 
 (r) Ante, p. 67, n. (c), 133. "We allowed at present in personal 
 
 have seen also that a gift of per- estate. 
 
 sonalty to A. and the heirs' of his (s) Re Ridge's Trust, L. E. 7 Ch. 
 
 body, giyes him the absolute in- 665 ; 41 L. J. Ch. 787; a»fe, p. 512. 
 
548 
 
 WILLS OF PERSONAL PROPERT'Y. 
 
 Question in 
 the case. 
 
 Judgment of 
 the Court of 
 Appeal. 
 
 Supplying 
 omission in 
 a WilL 
 
 twenty-one. L., one of these, died in 1868, leaving two 
 children, both born after the death of C F. died in 1870, 
 a spinster, and E., the remaining one of the three, also a 
 spinster, was living at the date of the suit, as were the 
 three children of C, who at her death had taken her share 
 of the estate bequeathed. The question in the case was 
 as to the share of F., who had died unmarried in 1870. 
 Vice-Chancellor Wickens having held that this must ac- 
 cumulate until the decease of E., the two children of L. — ■ 
 that is to say, the grandchildren of C. — appealed against 
 that decision. The Lord Justice James, in delivering 
 judgment in this case, began by characterizing the testator's 
 Will as a mere " sketch,'' in which he had not provided 
 for two most important contingencies, first the possibility 
 of two daughters having issue living at the time of their 
 death ; next, that of one of them dying immediately after 
 himself, leaving the other two as spinsters, who might not 
 marry for a great number of years, or not at all, which was, 
 as to the latter contingency, actually the fact. " If," said his 
 lordship, " this had been a gift of real estate to the three 
 daughters, and the heirs of their bodies as tenants in 
 common in tail, and a gift over in the event of all of them 
 dying without issue, it would have been the common case 
 in which cross remainders in tail would be implied. If 
 the Will had run thus : — ' I give to the three, and on 
 their death to their respective children, and if any of them 
 should die without children, then to the survivor or sur- 
 vivors, and if all should die without children, then over,' 
 that would have been a case in which survivors would 
 have been construed ' others.' Now, I am of opinion that 
 this case falls entirely within those principles. It is a 
 case in which we are authorized and bound to fiU in the 
 Will, and to supply the gaps by plain judicial implica- 
 tion of the testator's meaning. The testator obviously 
 intended that the objects of his bounty were to be his 
 daughters' families, if they should have any . . .;and we 
 are of opinion that the class of issue must be in every 
 
OF EXECUTOES AND ADMINISTRA.TORS, 549 
 
 such case ascertained at the death of the person leaving 
 issue surviving . . . In truth, if we were to read this 
 Will otherwise . . . that would be to contradict the 
 last gift in the Will, which is to 'pay and apply the 
 whole residue to or equally amongst the issue of such 
 one daughter' . . . The conclusion is, that the limita- 
 tions are to be supplied between thel families . . . and 
 that with regard to the share now left vacant by the 
 death of F., one moiety will be given to the issue who 
 take their parent's share, and the other moiety will go 
 by way of accretion to the remaining tenant for life, 
 who will take it as such, and on her death to her 
 issue, if any." The testator's intention in this case was 
 that there should be reciprocal benefits between those 
 members of his daughters' families who could enjoy 
 them ; if some proved incapable of doing so, then others 
 should take what they could not, and the property was 
 not to go from any of them until the occurrence of the 
 events which he provided for had become impossible. 
 
 Wild's Case (t), which gave existence to a rule of con- Wild's ease, 
 struction applicable to devises, was shortly this : — Land there eniin-° 
 was given by Will to A. for life, remainder to B. and ciated. 
 the heirs of his body, remainder to Wild and his wife, 
 and after their decease to their children. At the time 
 of the devise they had two children, a son, D., and a 
 daughter, E. The devisor, the tenant for life A, and also 
 the remainderman B. having died, the latter without 
 issue. Wild and his wife subsequently died. D., their 
 son, next died, leaving a daughter F., and the gi-eat 
 question in the case was, whether F. should have the 
 estate. In order to solve this, it was first to be discovered 
 what was the precise character of the estate which Wild 
 and his wife had taken, and after an argument before all 
 ' the judges, it was held that they had had only an estate 
 for life, with remainder to their children for life, and not 
 
 (t) Coke's Rep. Pt. 6, p. 17 ; but 681 ; also Lord OUnorehy v. les- 
 see Tudor's L. 0. in Real Property, mUe, 1 L. C. Eq. 1. 
 
550. 
 
 WILLS OF PERSONAL PROPEETY. 
 
 an estate tail. This decision forms, then, what is com- 
 Natnreof the monly termed the rule in Wild's Case. Stated gene- 
 case, rally (u), it will amount to this, that where there is a 
 devise to a man and his children, or where the stronger 
 term " issue " is used, and he has none at the date 
 of the Will, "children" must be taken to be primd 
 facie — that is to say, where no intention to the contrary 
 appears — a word of limitation, so that the first taker has 
 an estate tail (x), but if he has children at the date of the 
 devise, then primd facie as before, the instrument must 
 be construed as giving a joint estate to the first taker 
 and his children as purchasers, from which we see that 
 " children " may be read as a word of purchase or limita- 
 tion according to circumstances. And if lands be devised 
 directly, or in remainder, to a husband and wife, as in 
 Wild's Case, and after their decease to their children, in 
 such case, though no child is in existence at the time of 
 the devise, yet every afterborn child may take by way 
 of remainder, for the primd facie intent here would be 
 that their children should not take immediately, but 
 after the death of their parents. Accordingly, F. took 
 the land as a purchaser. 
 
 These rules of construction have been observed, where 
 
 applicable, in the construction of devises of realty ever 
 
 Rule in Wild's since, but the question to be observed here is this : — Are 
 
 pSl^*tT they applicable to bequests of personalty ? " That ques- 
 
 personal estate, tion,'' said Lord Campbell, C, in the case cited below (y), 
 
 " underwent much discussion in Heron v. Stokes (z), when 
 
 (») See Lord Cranworth's Judg- is meant to be immediate. It was 
 
 ment in Byng v. Byng, 10 H. L. stated by Sir Mattbew Hale in tbe 
 
 Cas. 171 ; 31 L. J. Ch. 470, cited old ease oi King y. Moiling, 1 Vent 
 
 also by Malins, V.-C, in, Grieve v. 225, that" though "children " may 
 
 Grieve, L. R. 4 Eq. 180 ; 36 L. J. he made nomen collectivum, "issue" 
 
 Ch. 932. is such itself. 
 
 {x) Gooh V. Cook, 2 Vern. 545. (y) AudsUy v. Eorn, 1 De G. F. 
 
 The intent is manifest that the &J. 226; 29 L. J. Ch. 201. (1860); 
 
 children should take, but they can- affirming Sir J. Eomilly, M.E., 26 
 
 not do so as immediate devisees, Beav. 195 ; 28 L. J. Ch. 293. 
 
 not being in esse; nor can they (z) 12 CL & F. (H. L.) 161 ; 2 
 
 take by remainder, because the gift Dru. & War. (Ir.) 89. 
 
OF EXECUTORS AND ADMINISTRATORS. 551 
 
 it came on before the House of Lords on appeal ... In 
 that case there was no necessity for deciding this ques- 
 tion, and I forbore giving any opinion upon it ; and with 
 Lord Cottenham, I wished the question to be still consi- 
 dered as open. Now, I am prepared deliberately to say 
 that, in my opinion, the rule in Wild's Case does not 
 apply to personalty . . . There is no reported decision in 
 which Wild's Case has been actually applied to person- 
 alty." His Lordship founds his opinion upon the 
 difference existing between the technical rules of the 
 feudal laws which govern realty, and which, as we have 
 before seen, do not concern personalty. But with regard 
 to testamentary dispositions of both classes of property, 
 to further the intention of a testator to confer benefits 
 upon devisees or legatees, should in all cases be the 
 primary object of a Court of Construction, and upon this • 
 principle was founded the ratio decidendi in Wild's Case. 
 For the same reason which led to the recognition of the 
 doctrine now under notice, namely, the desire to effectuate 
 the testator's intention, the rule will not, it appears, be 
 applied, where doing so would defeat the testator's wishes. 
 
 In the following case, a lady devised, in 1846, a house Case of a mixed 
 to her nieces, A. and B., and their children, and if thev ''^^p where the 
 
 rul© m vv%Zd& 
 
 should not have any, then to their brother C. and his case was not 
 children, "the furniture to go with the house." Neither ^^P^'"^' 
 of the nieces had a child at the date of -the Will, but both 
 had children born afterwards. Now here it is seen there 
 was no issue at the date of the Will, and the question, 
 therefore was, whether, in accordance with Wild's Case, 
 " children '' was to be read as a word of litnitation, so as 
 to give the parents an estate tail. The testatrix died in 
 1847. The niece A. had five children born between 1846 
 and 1854, all of whom, with their mother, were alive at 
 the date of the special case submitted to the Court. The 
 niece B., who was dead at the date of the case, had one 
 child, then living. The plaintiffs were A. and her hus- 
 band ; the defendants were their children, together with 
 
552 WILLS OF PERSONAL PROPERTY. 
 
 the husband and child of B. For the plaintiffs it was 
 argued that the Court was bound here to apply the rule 
 as in Wild's Case, so as to make A. and B. tenants in 
 tail ; and as to the furniture, that would have to follow 
 the realty (a). On the other side, it was contended that 
 the rule in Wild's Oase was not inflexible, and could not 
 be applied to defeat the intention of the testatrix in this 
 case, which was to give the nieces simply estates for 
 life, so that their children might take by purchase in 
 moieties ; further, that the direction as to the furniture 
 was inconsistent with the supposition that the nieces 
 were intended to take estates tail Viee-Chancellor 
 Malins, concurring in this view, held that A., the living 
 niece, was entitled to one moiety of the house for life, 
 with remainder to her present children and those born 
 afterwards, as joint tenants, and one moiety of the fur- 
 niture absolutely, and that the child of the deceased 
 niece took the same interest in the house and furni- 
 ture. From what has been stated, then, we may con- 
 clude that although at present the rule in Wild's Case 
 is not directly applicable to the construction of testa- 
 mentary disposition of personal estate, yet that the rule 
 is not of so hard and fast a character that it must be 
 applied to all devises of realty — especially where person- 
 alty is included — where by doing so a testator's objects 
 would be frustrated. 
 The rule in We now come to the rule in Shelley's Case, for which 
 
 ShelUy's case. ^^ ^^^ ^^^^ indebted to Lord Coke's Eeports (6). Shortly 
 
 (a) The late Vice-Chanoellor given rise to a vast numter of in- 
 
 Giffard was of opinon, that it was tricate questions and a, correspond- 
 
 stating bad law to say, that where ing amount of legal learning in their 
 
 realty and personalty were blended solution. The reader desirous of 
 
 in a Will, the latter necessarily went going deeply into the matter, may 
 
 as the former. All the authorities, gratify his inclination in this 
 
 he said, were to the opposite effect, direction by perusing especially 
 
 Eerriek v. Franklin, L. R 6 Eq. Eearne on Oontingent Remainders, 
 
 693 ; 37 L. J. Ch. 908. by Butler — passim. We 
 
 (5) Pt. 1, p. 94. .This rule has hardly remind the reader of the 
 
OP EXECUTOUS AND ADMINISTRATORS. 553 
 
 stated it is this : — ^Whenever a man by any gift or con- 
 veyance takes an estate of freehold, and in the same gift 
 or conveyance an estate is limited either mediately or im- 
 mediately (c), to his heirs in fee or in tail, the word heirs 
 is a word of limitation and not of purchase; in other 
 words, this limitation to heinrs gives the taker an abso- 
 lute interest in the property, either in fee or in tail as 
 the case may be. We see that all the terms employed Not applicable 
 
 here are those which strictly belong to the feudal rules directly to 
 
 •' ° personal 
 
 concerning real estate, and our purpose cannot there- estate. 
 
 fore be to inquire whether the rule itself in Shelley's 
 Case is applicable to personalty {d), but to see whether 
 any principle of an analogous character can be employed 
 in construing bequests. We have already had occasion to 
 state that a gift of personalty to A., and the heirs of his 
 body, would vest the gift absolutely in A. The reason is 
 that the intention of the donor in such a case would clearly 
 be to keep the gift intact until those persons ceased to 
 exist ; that is to say, descend ad infinitum, and this is 
 opposed to the principles of the law. Again, a bequest to 
 " A., his executojs, &c." or to " A. and his legal repre-* 
 sentatives," or a gift to " A., for life only, his executors, 
 administrators, and assigns, would produce the same re- 
 sult, namely, that of conferring upon A. the absolute 
 interest in the gift. If, again, the gift were to A. and his 
 issue, and in default over ; or to A. for life, and after his 
 death to his heirs, or heirs male, a similar construction 
 would be given. As remarked by Lord Cranworth, in 
 Ex parte Wynch {d), the words " heirs of the body " are 
 
 lucid explanation of the rule given heirs of A., or those of his body, in 
 
 by Mr. JoshuaWUliams, E. P., Part this case A. has only a mediate 
 
 ii. ch. 1. inheritance. 
 
 (c) If land be Knaited to A. for {d) That it is not, see Forth v. 
 life, remainder to his heirs, or the Chapunan, 1 P. 'Wms. 663, not 
 heirs of his body, the limitation to altogether an indubitable authority, 
 his heirs is irmnediate ; but if land however, though cited with appro- 
 be to A. for life, remainder to B. batiou by Lord Justice Turner in 
 for life or in tail, remainder to the Ex parte Wynch, or In re Wynch's 
 
554i WILLS OF PERSONAL PROPERTY. 
 
 words of art almost mysteriously inflexible, but that the 
 expression " issue " was of a more manageable character. 
 At the same time, if there be nothing to indicate that the 
 word was not intended as a word of limitation, that is, 
 nothing to show an intention to confine the first taker to 
 a life estate, it has been held to be in the nature of a 
 word of limitation, when used in reference to personalty, 
 equally with " heirs of the body." 
 ''Jsme"pnmd " The rule at law," said Lord Justice Turner, in Ex parte 
 
 fane a word of i-i . ■ ^ r ■ ^ 
 
 limitation. Wynch,, "which construes 'issue' as prima facte a word 
 
 of limitation, rests, as I apprehended, on one or other of 
 these foundations. It is either derived from the old law, 
 which upon feudal principles was much directed against 
 the successors to real estates taking otherwise than by 
 descent ; or it rests upon the ground that the word 'issue' 
 per se includes all the issue, and that the best mode of 
 effectuating the intention in favour of all the issue is to 
 give an estate tail to the parent, which in the course of 
 devolution would embrace them all. Surely a rule resting 
 on such foundations can have no application to personal 
 estate. The feudal principle does not reach to the subject 
 matter, and so far from the application of the rule to per- 
 sonal estate effectuating the intention, it directly and 
 immediately defeats it, for it gives the absolute interest to 
 the parent, and prevents the issue, qud issue, from taking 
 any benefit under the disposition." The result is, that 
 the words " to A. and the heirs of the body " used in a 
 testamentary gift of personalty, will give the absolute in- 
 terest to A., by reason of their importing that inheritance 
 with which personalty is not concerned ; on the other hand, 
 
 teraT" issue " ^^ ^^^ ^^^^ " ^^^^^ " ^® similarly used, then as in Knight 
 
 Trust, 5 De G. M. & G. 188 ; 23 the above cases are cited, and 
 
 L. J. Ch. 930, affirming Stuart, Gififard, Y.-C, distinctly states the 
 
 y'.-C, 1 Sm. & Gif. 427 ; 22 L. absence of authority to show the 
 
 J. Ch. 750 ; where Knight v. Ellis, rule in Shelley's C'lisc, to be applic- 
 
 2 Bro. C. C. was approved. Also able to personalty. And read the 
 
 see Hemck v. JFranklin, h. B. 6 mstvuctvve case ot ffarvei/ v. Towell, 
 
 Eq. 593 ; 37 L. J. Ch. 908, where 7 Hare, 231 ; 17 L. J. Cli. 217. 
 
OF EXBCUTORS AND ADMTNISTRATOES. 555 
 
 v. Ellis, and on the ground of carrying out the testator's 
 intention, such word will not be regarded as a technical 
 word pri-mA facie implying limitation, but as a term of 
 flexibility that must yield to the meaning which the whole 
 language of a Will is found to attribute to it. How far • 
 
 then is the truly feudal rule in Shelley's case analogously ^"Jj^^ *^ 
 applicable — if we may so express it — to a disposition of Shelley's case 
 personalty ? Mr. Joshua Williams in his treatise on the appliSe to 
 Law of PersoTial Property, after remarking that, " as personalty, 
 real estate is conveyed to a man, his heirs and assigns, so 
 personal estate is assigned to him, his executors, adminis- 
 trators, and assigns," states in substance that the heir or 
 assign (e) of realty corresponds with the executor of 
 personalty in regard to his right to a deceased person's 
 property. "But," he proceeds, "the analogy extends no 
 further. There is no necessity for the use of these terms 
 as there is for the employment of the word ' heirs.' These 
 terms, however, are constantly employed in conveyancing 
 as words of limitation of an absolute interest ; and a rule 
 has sprung up with respect to their construction similar 
 to the rule in Shelley's case, by which the word " heirs " 
 when following a life estate given to the ancestor, is 
 merely a word of limitation, giving such ancestor an 
 estate in fee. Thus, if money or stock be settled [or Example, 
 given by Will] in trust for A. for life, and after his decease 
 in trust for his executors, administrators, and assigns, A. 
 will be simply entitled absolutely ; in the same manner as 
 a gift of lands to A. for his life with remainder to his heirs 
 and assigns, gives him an estate in fee simple. But as E,ule as to 
 the rule, so far as it applies to personal property, is not estaTe"*' 
 founded on the same strict principle as the rule in 
 Shelley's case, a gift of such property to the executors or 
 administrators (not adding assigns) (/), of a person who 
 
 (e) See ante, p. 70. Ch. 465 ; a case of a post-nuptial 
 
 (/) The judgment of Lord Chan- settlement, contains some valu- 
 
 cellor Truro, in Mackensie v. Mao- able information on this subject. 
 
 kenzie, 3 Mac. & G. 559 ; 21 L. J. Morris v. Holoes, i Hare, 599 ; 16 
 
556 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Illustrative 
 case. 
 
 Primary 
 meaning of 
 "personal 
 representa- 
 tives." 
 
 Absolute gift 
 resulting from 
 attempted 
 limitation of 
 leaseholds. 
 
 has taken a previous life interest, may under peculiar 
 circumstances, be coastrued as giving him no further 
 interest in such property, whilst under the same circum- 
 stances, the word 'heirs' in a gift of real estate would 
 have given him the fee simple" (g). 
 
 The following case (A) will illustrate one of the fore- 
 going observations : — 
 
 A. bequeathed the interest of £1000 stock to be paid to 
 B. for life, and directed that at B.'s decease the stock 
 should be transferred to the latter's personal representa- 
 tives. Held, that the primary meaning of these words 
 was executors and administrators, and as there were no 
 words to alter such meaning in the Will, B. took the fund 
 absolutely, and that there was no substitutional gift to her 
 next of kin (i). 
 
 Again, a testator gave leasehold estate to trustees on 
 trust for B. until he should attain the age of twenty-one ; 
 with certain remainders, and a remainder to sons of B., 
 and the heirs male of their bodies, with remainders over 
 in the event of dying with issue, which happened to C, 
 it was held by the House of Lords that such remainder 
 over was not void for remoteness, but that in this case, 
 the rule as to freeholds applied to leaseholds, and as in 
 
 L. J. Ck. 121 (Marriage Settle- 
 ment). 
 
 (g) Wms. P. P. 243, 244, 5th ed. 
 
 (A) Alger v. Parrott, L. E. 3 Eq. 
 328. — Note : Of course the primary 
 meaning of "personal representa- 
 tives," is controllable by the con- 
 text of a "Wni ; see Booth v. Vicars, 
 1 Coll. C. C. 6 ; 13 L. J. Ch. 147 ; 
 Stodcdale Y. Nicholson, L. R. 4 Eq. 
 359 ; 36 L. J. Ch. 793, 
 
 (i) As to the distinction between 
 next oflcm, under the Statute of Dis- 
 tributions (22 & 23 C. 2, c. 10), and 
 nearest of kin, see WiOiy v. Maiigles, 
 10 GL &F. 216 ; 10 L. J. Ch. 391 ; 
 
 In re Gryll's Trusts, L. R. 6 Eq. 
 589 ; Bnggs v. Upton, L. E. 7 Ch. 
 376 ; 41 L. J. Ch. 519, affirming 
 the decision of Wickens, V.-C, 41 
 L. J. Ch. 33, where "legal per- 
 sonal representatives, in due course 
 of administration," denoted the 
 next of kin of a vrife, according to 
 the Statute of Distribution. Robin- 
 son V. Evans, 43 L. J. Ch. 82 ; In 
 re Bests Settlement Trusts, L. R. 
 18 Eq. 686 ; 43 L. J. Ch. 545, 
 where the term "personal repre- 
 sentatives '' was held to mean " ad- 
 ministrators. " 
 
OF EXECUTORS AND ADMINISTEATOES. 557 
 
 freeholds C. would have taken an estate tail, so here he 
 took an absolute interest (7c). 
 
 We have 'alluded in some of the preceding pages of this Tribunal for 
 book to what is termed a Court of Construction, and this tioVof^ms'ol 
 we remarked in a note at p. 512, is the Chancery Division personalty, 
 of the High Court of Justice. Before the Judicature 
 Acts, while it was the province of the Court of Probate 
 to decide upon the validity of Wills of personal property, 
 it was essentially and exclusively for the Court of 
 Chancery to affix a meaning to the' terms of these docu- 
 ments, that is, when circumstances compelled an appeal 
 to judicial interference. In other words, the Court of 
 Chancery was the proper forum for the construction of 
 Wills of personal estate, and its jurisdiction in this respect 
 alone constituted the true function of that tribunal in 
 regard to its authority over testaments, or Wills of per- 
 sonailty. These powers, the one of deciding upon the 
 factum, of a Will, and the other of construing the document 
 when made, have respectively descended upon the present 
 High Court of Justice, and are severally exercisable in 
 the two Divisions of the High Court which represent the 
 former distinct courts referred to. 
 
 The Court of Chancery never had, and therefore never Chancery 
 rightly exercised, any authority for the purpose of directly "ever possessed 
 determining upon the validity of a Will of personal estate, deciding on the 
 although it has always been competent to that tribunal to ^^ ^*^ " ^ 
 fix a trust upon any legacy or residue in cases of fraud. 
 Whenever the Court has been applied to for the construction 
 of such a Will or the payment of legacies thereunder, it has 
 proceeded on the foundation that the paper had already been 
 proved in the Court possessing jurisdiction for that purpose. 
 
 " The Court,'' said Lord Langdale M. K, in the case of When 
 Byves v. The Bulce of Wellington {I), " does interfere for f^toS. 
 the protection of property pendente lite for probate and 
 
 [h) Williams v. Lewis, 6 H. L. {I) 9 Beav. 579 ; 15 L. J. Ch. 
 
 Cas. 1013; 28 L. J. Ch. 505, 461 (1846). 
 affirming. 
 
558 
 
 WILLS Off PEESONAL PROPERTY. 
 
 The Chancery 
 Division of the 
 High Court of 
 Justice cannot 
 effectuate 
 testamentary 
 papers before 
 Probate. 
 
 Will not ex- 
 aminable in 
 Chancery 
 Division while 
 probate thereof 
 stands. 
 
 letters of administration, and does, perhaps sparingly, and 
 with great cautioii, exercise some jurisdiction in some 
 cases of fraud practised in obtaining probate (m), or in the 
 spoliation of Wills ; but relief under a Will produced is 
 given only in the cases where grants have been made of 
 probate or of letters of administration . . ." 
 
 The Chancery Division of the High Court of Justice is 
 therefore concluded by the decision of the Probate Division 
 that an instrument propounded is testamentary {n], and 
 on the other hand, the former cannot give effect to testa- 
 mentary papers without probate (o). 
 
 As long as the probate of a Will remains unimpeached, 
 the Will itself is not examinable — except for purposes of 
 construction — in the Chancery Division of the High Court of 
 Justice (p). The probate is conclusive evidence that the 
 instrument was testamentary according to the law of the 
 land {q), and also as to the title of the executors to all 
 personal property of which the testator was capable of 
 disposing (r). 
 
 Will of an 
 English 
 Sovereign not 
 under the 
 jurisdiction of 
 the Probate 
 Division. 
 
 (m) See ante, pp. 409, 410, and 
 the oases there cited in note (a). 
 
 Note. — The case mentioned in 
 the text, Eyves v. Duke of Welling- 
 ion, was virtually before the Pre- 
 rogative Court of. Canterbury in 
 1822, under the name of In the 
 goods of his late Majesty Ring 
 Cfeorge the ThirdI,. It was then de- 
 cided by Sir John Nicholl, that a 
 reigning Sovereign could not be 
 proceeded against in the Probate 
 Court by a subject to enforce pay- 
 ment of a legacy given by a former 
 Sovereign, and that the Sovereign's 
 proctor c6uld not be cited to see 
 such paper propounded. See 1 Add. 
 Eoc. Rep. 255. Again, in 1862, 
 ■under the same name, the case , 
 came before Sir CressweU Cresswell, 
 when it was decided that the Court 
 of Probate had no jurisdiction to 
 
 decide on the validity of a ViU 
 made by a deceased Sovereign of 
 this realm. 3 Sw. & Tr. 199 ; 32 
 L. J. P. & M. 15. 
 
 (m) Doitglas v. Cooper, 3 Myl. & 
 K. 378 ; a case of a Power, wherein 
 " the formalities prescribed by the 
 Power " are referred to. By 1 Vict, 
 c. 26, ss. 9, 10, we find that now a 
 ■WUl in exercise of the Power is 
 sufficient exercise thereof, if it be 
 executed like any other "Will. 
 
 (o) See the judgment of Dr. 
 Lushiogton, in Brenchley v. Lynn, 
 2 Rob. Ecc. Rep. 461. 
 
 (p) Kerrkh v. Bransiy, 7 Bro. 
 C. C. 437. 
 
 (9) Per Lord Cranworth, in 
 Whicker v. Hume, 7 H. L. Cas. 
 124 ; 28 L. J. Ch. 396 (Domicile). 
 
 (r) Per Lord Wensleydale, Ibid. 
 
OP EXECUTORS AND AUMINISTRATORS. 559 
 
 Again, the Chancery Division cannot afford relief to lega- No relief 
 tees or devisees under a Will defectively executed ; for being chancery"^ 
 mere volunteers, they have no more equity than the next of Division where 
 kin or heir, and where the equity is equal the law will prevail {s). tively exe- 
 
 But although the Court of Chancery was, and the '="'^<l' 
 Chancery Division of the present High Court of Justice Probate 
 
 • TTT-n r 1 Division 
 
 IS, the proper torum tor construing Wills oi personal estate, occasionally 
 
 yet the Court of Probate was not, and the Probate Division ^°*^ ^ ^ 
 
 of the High Court of Justice is not precluded from putting Construction. 
 
 a construction under certain circumstances upon the words 
 
 of a Will. " The Court of Probate does not habitually act 
 
 as a Court of Construction ; that is not its proper function, 
 
 save in cases where it is absolutely necessaVy to determine 
 
 the rights of the litigant parties " (t). But the Probate 
 
 Division will follow the ruling of the Chancery Division 
 
 where that of the latter, at variance with its own upon 
 
 the meaning of a Will, the reason being that proceeding 
 
 to obtain the judgment of the latter tribunal is in the 
 
 nature of an appeal from the former (u). 
 
 In Nohle v. Phelps or v. Willock (x), when that case Real function 
 was before Lord Penzance in the Court of Probate, his K^ion™ ^*^ 
 lordship remarked that : — " What this Court has to de- 
 termine is whether the testatrix has made a good Will. 
 The capacity to make a Will at all is, of course, in- 
 volved in that proposition. But when the question of 
 that capacity arises out of and depends upon the dispos- 
 ing powers of the testatrix over certain property, it is 
 obvious that the same question must afterwards arise in 
 
 (s) Sm. Man. Eq. 39. the goods of De Pradel, L. R. 1 
 
 {t) Per Sir Cresswell Cresswell, in P. & B. 454 ; 37 L. J. P. & M. 2, 
 
 Warren v. Kelson, 28 L. J. Ch. following Barnes v. Vincent, 5 Moo. 
 
 123. But this means that such P. 0. 201 ; see also post, as to this 
 
 determination, supposing it to latter case. 
 
 occur, is subject to a subsequent in- {u) Ante, n. (e). 
 
 terpretation by the proper Court of {x) L. R. 2 P. & D. 276 ; 40 L. 
 
 Construction. The real question for J. P. & M. 60 ; referred to ante, 
 
 the Probate Division is, whether the pp. 362, 368, 370, 378, 380, 381. 
 
 Will is duly executed or not -.In 
 
560 
 
 WILLS OF PERSONAL PKOPERTY. 
 
 Will made in 
 exercise of a 
 Power. 
 
 Jurisdiction 
 of the Probate 
 Division as 
 compared with 
 that of the 
 Chancery 
 Division. 
 
 the Court of Equity. In such a case, it is the duty of this 
 Court to grant probate of the Will if valid in other 
 respects, so as to enable the Court of Equity to adju- 
 dicate on that question " {y}. 
 
 With regard to a Will alleged to have been made in 
 execution of a Power, and proof is produced of a Power 
 enabling the deceased to dispose of property by Will, the 
 Court is bound to decree probate of such a paper, and has 
 no authority to inquire whether the Will is in the form 
 required by law for the due exercise thereof, or whether 
 it has been exercised with the formahties required by the 
 Power. It is for the Court of Construction to decide 
 whether the Will is operative (s). 
 
 "The Court of Probate," said Dr. Lushington in 
 Brenchley v. Lynn (a), " must decide whether the form of 
 execution has been followed in accordance with the pro- 
 visions of the statute 1 Vict. c. 26 ; but the judgment of 
 a Court of Probate is not made more binding in a Court of 
 Equity than it was before the statute came into opera- 
 tion. A Court of Equity may, if it should think fit, 
 inquire into the execution of a Power, and decide, notwith- 
 standing a grant of probate, that the Power itself was not 
 well executed ; a Court of Equity might differ both as to 
 law and facts. Even a decision by the Judicial Committee 
 of the Privy Council on the same point would not bind the 
 Courts of Chancery (b). 
 
 (y) The case did afterwards go 
 before two Courts of Equity, and 
 finally as WillocTc v. Noble, to the 
 House of Lords ; see L. R. 8 Ch. 
 778 ; L. R. 7 E. & I. App. 580 ; 
 42 L. J. Ch. 321, 681 ; 44 L. J. 
 Gh. 345. 
 
 (s) Be Ohatdain v. Poniigny, 1 
 Sw. ' & Tr. 411 ; 29 L. J. P. & M. 
 147, following Barnes v. Vincent, 
 the leading case on this subject, 5 
 Moo. P. C. 201. The latter was 
 also followed in Paglar v. Tongue, 
 L. R. 1 P. & D. 158, and in the 
 more recent case of Parkinson v. 
 
 Tovmsend, 44 L. J. P. & M. 32 ; 
 but see the observations of Sir H. J. 
 Fust on Barnes v. Vincent, in Sste 
 Y. Mste, 2 Rob. Ecc. Rep. 351. 
 
 (o) Ante, n. (o). 
 
 {b) The Judicial Committee of 
 the Privy Council ceased to have 
 any jurisdiction over matters testa- 
 mentary as a Court of Appeal in 
 English cases, when the Court of 
 Probate Act, 1857, came into 
 existence. See, as to appeals from 
 the Probate Division of the High 
 Court of Justice, next chapter, 
 and also in the Appendix (B), 
 
OF EXECUTORS AND ADMINISTRATORS. 561 
 
 Having thus again briefly considered some points and 
 principles concerning the construction of Wills, and the 
 respective functions of the Chancery and Pi'obate Divi- 
 sions of the High Court of Justice in i-egard thereto, we 
 now proceed with what we have to say further as to 
 executors and administrators. 
 
 The authority or appointment of an executor — Appointment 
 grounded as it is on a Will — may be either express or express or'im- 
 implied, absolute or qualified, exclusive or in common P^^^> "■^solute 
 
 • 1 1 nil 1 ■ 1 • 1 ™ qualified 
 
 With others, and he may be expressly nominated, either exdmwe, or 
 by a written, or by a nuncupative Will (c) ; that is, of ^^^ °*''"'- 
 course, where the latter can be made (d). 
 
 An executor may be constructively appointed by the Executor ac- 
 testator's recommending or committing to him the tmor!^ " 
 charge of those duties, which it is the peculiar province 
 of an executor to perform, namely, to collect the testator's 
 assets, pay his funeral expenses and debts. In cases 
 where it can be clearly gathered from the language of 
 the Will that a person, though not directly thereby ap- 
 pointed to perform these duties, yet was intended to do 
 so, such person is styled an Executor according to the 
 TENOR (e) ; and if he be pronounced such, he may be ad- 
 mitted to take probate with an eiiecutor expressly ap- 
 pointed (/), with whom he may act generally, or with 
 limited powers {g). 
 
 The appointment of a person as executor may, then, be Inferred 
 inferred from any circumstances which indicate an inten- of executor.* 
 tibn on the part of the testator that such an one should 
 
 (c) Toller, Exors. 34. these being named ornot in a Will, 
 
 (fl!) See a/lite, pp. 43 n. {g), 271 -when deciding whether persona 
 
 — 273. nominated therein are mere tnis- 
 
 (e) In the goods of Adamson, L. tees or actual executors, so as to 
 
 R. 3 P. & D. 253. determine the question of ezecutor- 
 
 NoTE. — It is highly important to ship according to the tenor, 
 
 bear in mind the statement in the (/) Powell v. Stratford, cited in 
 
 text as to those duties which 3 Phillim. Ecc. Rep. 118. 
 
 specially devolve on an executor. (g) Lynch v. Bellew, Reported 
 
 The Probate Division will look to Ibid» 428. 
 
562 
 
 WILLS OF PERSONAL PKOPEETY. 
 
 act in that capacity. Thus, if a Will direct that A. shall have 
 the testator's personal property after his death, and after 
 paying his debts shall be able to dispose of it at his own 
 pleasure, although A. is not directly named as executor, 
 yet, being invested with the power which belongs to an 
 executor he is deemed to be such according to the 
 tenor (h). 
 Where trustees Where a testator after directing payment of his debts 
 executors^ and funeral expenses bequeathed his property in trust, 
 according to nominating A. and B. trustees thereof to carry out his 
 wishes, these persons were held to be executors according 
 to the tenor (i). Now in this case, but particularly in that 
 cited therewith below, it will, on examination, be per- 
 ceived that the trustees were directed to perform duties 
 which specially appertain to the office of executor ; in the 
 latter, being ordered to get in the estate, pay debts and 
 funeral expenses, and divide the residue. " This," said 
 Lord Penzance (then Sir J. P. Wilde) {k), " is the true 
 office of an executor," accordingly, the trustees were held 
 Where trustees executors according to the tenor. But cases sometimes 
 heli" ^° occur where trustees though appointed to act as such, are 
 either not directed to perform any of those duties which 
 devolve exclusively upon executors, or perhaps not any 
 Illustrative duties whatsoever. Of the former kind was In the 
 goods of Fraser (l). There the testatrix, who made her 
 Will in exercise of a Power, directed her trustees to pay 
 certain sums of money, of which she had the ability to 
 Principle of dispose by virtue of her marriage settlement. But the 
 trustees had no other duties than these to perform ; ac- 
 cordingly, on the principle before stated, they were held 
 not to be executors according to the tenor. " The cases 
 on the subject," said Lord Penzance, " have proceeded on 
 
 (h) Toller, Exors. 34. 21 ; 35 L. J. P. & M. 15. 
 
 (i) In the goods of Cliappell, 37 (k) In the goods of Baylis. 
 
 L. J. P. & M. 32 ; but see In the (I) L. E. 2 P & D. 183 ; 40 L. J. 
 
 goods of Baylis, L. E. 1 P & D. P. & M. 9. 
 
 case. 
 
 the cases. 
 
OF EXECUTOKS AND ADMINISTKATQES. 563 
 
 very fine distiuctions. The nearest in its circumstances There must 
 to the present which I can find is Boddicott v. Hamil- po^f^ten 
 ton ". (m). In the judgment I find the following remark : to trustees to 
 — ' I was of opinion that there were no words in the reoeiTO, to 
 Will to make the trustees executors. They had only make them 
 
 "^ •^ executors 
 
 power to pay what was vested m them as trustees to the according to 
 particular persons for whose use they held it, but not a *®''°'^' 
 general power to receive and pay what was due to and 
 from the estate, which is the ofiSce of an executor.' I 
 think that caSe must govern the present .... Shortly, 
 therefore, because I regard this Will as the execution of 
 a Power, that the distribution of the fund is to be made 
 by the trustees in their character of trustees under the 
 settlement, and that no general power is given them to 
 collect debts and pay legacies : for these reasons I think 
 they cannot be Considered executors according to the 
 tenor " (to). From these observations we are able to per- 
 ceive clearly the guiding principle in determining whether 
 persons named in a Will for certain purposes or reasons 
 are executors according to the tenor or not. 
 
 The following is a singular case as to trustees ap- Appointing 
 pointed, or rather meant to be appointed, in a Will with *X^^I'*''" 
 no duties whatever given to them (o). A. made a holo- tiiem any 
 graph Will, commencing thus : — " I have given all that I perform, 
 bave to B. and her two sons, C. and D." They were 
 directed to pay E. so much a week during her life, and 
 the testator then ordered that his residuary estate should 
 be equally divided between B., C, and D. This Will 
 contained no attestation clause, but was signed by A. and 
 also by P. and Q. as " witnesses." Beneath the testator's 
 signature were also those of two other persons as " trus- 
 tees." The Court held that the paper was testamentary, 
 
 (m) 2 Lee, Ecc. Eep. 294. Stewcurt, L. R. 3 P & D. 245 ; 44 
 
 (n) See also In the goods of L. J. P. & M. 37. 
 Lovny, L. E. 3 P & D. 157 ; 43 L. (o) In the goods of Coles, L. E. 2 
 
 J. P. & M. 34 ; In the goods of P. & D. 362 ; 41 L. J. P. & M. 21. 
 
 2 
 
564. 
 
 WILLS OP PERSONAL PROPERTY. 
 
 Trustees not 
 duly appointed 
 when names 
 occur under 
 testator's 
 signature. 
 
 A trustee 
 named in a 
 Wm not neces- 
 sarily an 
 executor, and 
 conversely. 
 
 How executor 
 may become an 
 actual trustee. 
 
 Distinction 
 between legal 
 position of 
 executors and 
 trustees. 
 
 that the attempted appointment of trustees was invalid, 
 because their names were written beneath the signature 
 of the testator and the witnesses, and, therefore, formed no 
 part of the Will. If, however, the trustees had been duly 
 appointed, the question might have arisen as to whether — 
 notwithstanding the fact that by the terms of this Will 
 there was nothing for them to do — they would not have 
 been executors according to the tenor. The report of the 
 case seems to indicate that the Court rather agreed with 
 the argument advanced, that the persons named in the 
 paper as trustees would have been executors according 
 to the tenor, had their names actually been in the Will. 
 In a case, however, which occurred a few weeks after the 
 one just considered, where a person had been appointed 
 a trastee with no duties cast upon him, and without any 
 estate having been conveyed to him, the same learned 
 judge declined to pronounce him to be an executor ac- 
 cording to the tenor (p). 
 
 A trustee named in a WiU is therefore not necessarily an 
 executor, and conversely an executor is not a trustee qwa 
 such, although his oflSce is fiduciary in its nature, arising 
 from confidence having been reposed in him, and he may 
 become an actual trustee, as we have seen, of unbequeathed 
 residuary estate for a testator's next of kin. Still, the offices 
 of executor and trustee are essentially distinct in their 
 duties and powers, and the rules applicable to the former 
 are not applicable to the latter. Thus, any number of 
 executors are regarded in law as one person, and, there- 
 fore, each has a several right to receive the debts due to 
 the estate, and all other assets, and is competent to give 
 
 (p) See also In the goods of Pv,n- 
 chard, L. R. 2 P. & D. 369 ; 41 L. 
 J. P. & M. 25. "Nothing," said 
 Lord Penzance, "is conveyed to 
 him as a trustee— there is no duty 
 cast upon him, and all the matter 
 amounts to is that he is said to be 
 a trustee. I think that is not 
 
 enough to warrant the Court in 
 holding him to be an executor ac- 
 cording to the tenor. " As to the 
 distinction between a mere overseer 
 or coadjutor and an executor, see 
 1 Wms. Exors. pt. 1, bk. 3, ch. 2, 
 243. 
 
OF EXECUTORS AND ADMINISTEATORS. 565 
 
 a discharge by his own separate receipt (g), which will be 
 as valid in every respect as though all his co-executors 
 joined, provided the money was under the control of them 
 all (r) ; yet trustees on the other hand, having only a 
 jovnt interest power and authority, must all join both in 
 conveyances and receipts (s). 
 
 But co-executors and co-trustees are on the same Wherein 
 footing, as regards the liability of each, for their own exeoutorrou 
 several acts only, although, of course, collusion will cause ^^™® footiDg. 
 this rule to be set aside. Accordingly, where two executors 
 and trustees sold out stock, which was received by one 
 of them, and misapplied by him, Lord Langdale, M.R., held 
 the other executor answerable for the amount (f). But in 
 the same case, it was held that the same co-executor, v^n- 
 aware of the receipt of dividends on stock by his col- 
 league, who had misapplied the same, was not liable for 
 this act of the latter. 
 
 Another result of the distinction between the position Indemnity 
 of co-executors and that of co-trustees is observable in the ^e^edT a'd"'^' 
 usual indemnity clause contained in instruments creating Wills, 
 trusts. The eflfect of this provision is to prevent one trustee 
 becoming liable for the acts of his co-trustees, although 
 it is useless to avert the consequences of a breach of 
 trust (u). As executors form on'e person in law, such a 
 clause would be inapplicable to them merely as such, but, 
 of course, would be to executors and trustees. 
 
 The above distinction between executors and adminis- 1 testator 
 trators made by the law can be disregarded by a testator, ^^^offi™'"?* 
 who may choose to unite the two offices in the same per- executor and 
 sons; and on the other hand it may, of course, be same^per^n!^ 
 
 (?) J^oy ■''■ Campbell, 1 Sclioales notes to JBrice v. Stokes and Town- 
 Si Lefroy (Ir.) 341 ; Judgt. of Lord ley v. Sherborne, 2 L. C. Eq. 899. 
 Eedesdale. (u) Brumridge v. Brumridge, 27 
 
 (r) Charlton v. Earl of Durham,, Beav. 5. Every instrument creat- 
 
 L. R. i Gh. 433 ; 38 L. J. Ch. 183. ing a trust is now by statute law 
 
 (s) See Lord Eldon's judgment in deemed to contain this indemnity 
 
 Brme v. Stokes, 2 L. C. Eq. 870. clause, whether it does or not. See 
 
 (t) Williams v. Nixon, 2 Beav. 22 & 23 Vict. o. 35, s. 31 (Lord St. 
 
 472 ; 9 L. J. Ch. 269. But see the Leonards' Act). 
 
566 
 
 WILLS OF PERSONAL PROPEETY. 
 
 Court dis- 
 tinguishing 
 between 
 executors and 
 trustees. 
 
 Power of 
 
 appointing 
 
 co-trustee 
 
 different from 
 
 that as to 
 
 appointing 
 
 co-executor. 
 
 Testator may 
 empower a 
 surviving 
 executor to 
 appoint an- 
 other to a«t 
 with him. 
 
 observed by him should he wish to delegate different 
 powers to different persons. To such intention on his part 
 the Court will give effect, as in the following case, where a 
 man by accepting the trusts of a Will, was held to be not 
 necessarily executor according to the tenor in consequence 
 of having done so : — A., by his Will, directed his debts and 
 funeral and other expenses to be paid, and then gave his 
 realty and personalty upon certain trusts to B., whom he 
 appointed sole executor, and he empowered B. to appoint, 
 by deed or Will, any other person to be a joint trustee 
 with him for the purposes of this Will (iv). B. died before 
 taking probate, leaving a Will of his own, in which, re- 
 citing A.'s Will, he gave all property to which he should 
 be beneficially entitled, to C and D., upon trusts, and ap- 
 pointed them his executors and trustees. G. having re- 
 nounced, probate of this Will was granted to D. On a 
 motion made by a creditor of A.'s estate for an order to 
 compel D. to accept probate of A.'s Will, or in default 
 calling upon him to accept or refuse Letters of Adminis- 
 tration, Sir Cresswell Cresswell held that D. could not be 
 compelled to take probate of the Will of A., as he was 
 not appointed executor of that Will, and did not, by ac- 
 cepting the trusts of A.'s Will, become executor thereof 
 according to the tenor (x). "There is no executor accord- 
 ing to the tenor," said the learned judge. " If B. had 
 proved the Will there was no power given to him 
 to appoint another executor to act with him or in sub- 
 
 (to) a testator may also empower 
 the survivor or survivors of Ms 
 executors to appoint another or 
 others to act with him or them, so 
 as to keep up the original number. 
 The following case is directly in 
 point: — A. appointed B. and 0. 
 executors of hor Will, and in case 
 of the death of either of them, de- 
 legated to the survivor the power 
 to name another to act with him, 
 in order that there might still be 
 
 two executors. Upon the death of 
 B., C. appointed D. to act with 
 Wm, but D. did not take probate 
 during the lifetime of C. Sir H. 3. 
 Fust held, however, that probate 
 should pass to D., who might name 
 another executor to act with him. 
 In the goods of Ddchman, 3 Curt. 
 12.3. 
 
 (x) Moss v. Bardswell, 3 Sw. & 
 Tr. 187 ; 29 L. J. P. & M. 117. 
 
OF EXECUTORS AND ADMINISTRATORS. 567 
 
 stitution; but it is supposed that such a power was 
 given to him incidentally and by referee. I, however, 
 think that as, if he had proved the Will, he would have 
 acquired no power to appoint an executor, he could not 
 do it by appointing an executor of his own Will .... 
 He is not appointed executor, and he cannot be compelled 
 as such to take probate." 
 
 it is also well settled that a person named simply as Universal 
 universal legatee under a Will is not executor accordinsr '®g^*^^ ^ "o* 
 
 ° _ = an executor 
 
 to the tenor of such Will. He would not therefore be according to 
 entitled to take probate thereof, but the practice is to ^ ^^°^' 
 grant a person in such position Letters of Administration 
 with the Will annexed. Thus, where A. made a Will in 
 the following terms : — "I leave all my property and 
 effects, possessed by me at the time of my death, to my 
 wife," the practice just mentioned was followed {y). 
 
 A person appointed "executor for all property not 
 named in the Will " cannot be entitled to probate as 
 executor on any grounds, because an executor must be 
 the person who has to deal with the property which is 
 left by the Will {z). 
 
 The appointment of an executor may be absolute Appointment 
 or qualified. It is absolute when he is constituted cer- °J ^^^^tor 
 
 . . , . ... absolute or 
 
 tainly, immediately, and without any restriction in regard qualified, 
 to the testator's effects, or any limitation in point of time. *^ *<> *li« P™- 
 It may be qualified, as where A. is appointed in respect of time.' 
 the testator's plate and household goods, B. in respect of 
 his cattle, D. in regard to his debts, E. on behalf of his 
 effects in England, F. for those in America, and so on. 
 Again, as to time, A. may be appointed to commence Time, 
 .acting as executor a year after the testator's death, or B. 
 may be appointed to act in the event of A.'s decease, or a 
 person may be appointed, provided he will give security 
 as a guarantee for the due performance of his duties, and 
 a testator may appoint his wife executrix until his son 
 
 {y) In the goods of Oliphant, 1 (s) In the goods of .WaJceham, 
 
 Sw. & Tr. 525; 30 L. J. P. & M. L. R. 2 P. & D. 396; 41 L. J. 
 82. P. & M. i6. • 
 
568 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Administrator 
 appointed 
 when executor- 
 ship expires 
 or before it 
 commences. 
 
 Executors 
 appointed ia 
 sereval de- 
 grees. 
 
 Bistinction 
 between an 
 insHtuttui and 
 a substituted 
 executor. 
 
 Executor sub- 
 stituted on 
 death of the 
 original 
 executor. 
 
 comes of age, or during her widowhood, &c., &c. (a). In 
 all these and similar cases, the executor's appointment is 
 said to be limited or qualified, or, as in the above instance, 
 where security is required to be given conditional, and 
 when the office of executor under such circumstances 
 cannot be performed, or has been performed and has ter- 
 minated, according to the testator's directions, the Court 
 will protect the estate by appointing an administrator, 
 who will conduct the business appertaining thereto. 
 
 We have seen that executors may be appointed either 
 conjointly for all the purposes of carrying out a Will 
 generally, or they may be so appointed that each is to per- 
 form certain specified duties. " Likewise a testator may 
 appoint several persons as executors in several degrees — 
 as where he makes his wife executrix ; but if she will not 
 or cannot be executrix, then he makes his son executor ; 
 and if his son will not or cannot be executor, then he 
 makes his brother, and so on. In which case the wife is 
 said to be instituted executor in the first degree, B. is 
 said to be substituted in the second degree,. C. to be sub- 
 stituted in the third degree, and so on. It must be 
 observed that if an institxded executor once accepts the 
 office and afterwards dies intestate, the substitutes, in 
 what degree soever, are all excluded, because the condition 
 of law (if he wdl not or cannot be executor) was once 
 accomplished by such acceptance of the instituted exe- 
 cutor. But when a testator appoints an executor, and 
 provides that in case of his death another should be sub- 
 stituted ; on the death of the original executor, although 
 he proved the WUl, the executor so substituted may be 
 admitted to the office, if it appear to have been the tes- • 
 tator's intention that the substitution should take place 
 on the death of the original executor, whether happening 
 in the testator's lifetime or afterwards " (6). 
 
 (o) Toller, Exors. 35, 36 ; but see 
 1 Wms. Exors. pt. 1, bk. 3, the 
 whole of ch. 3, 249. 
 
 (ft) 1 Wms. Exors. pt. 1, bk. 3, 
 ch. 2, 246, 247. 
 
OF EXECUTOES AND ADMINISTRATOKS. 569 
 
 The following cases will illustrate the foregoing quota- Illustrative 
 tion, and exhibit the position of a substituted executor : — 
 
 A. by her Will appointed B. executor, and, failing him, 
 then C. By a codicil she appointed D. in the place of C, 
 and by a second codicil she cancelled the appointment of 
 
 B. and in his place nominated E. The latter declined to 
 act alone, and renounced his right to probate. Held, that 
 D. was entitled to probate as the substituted executor, on 
 the failure of E. (c). 
 
 Again, where a naval officer was appointed executor. Substitution 
 but in case of his absence abroad on service then another absence abroad 
 person a lady was to act, and the original executor left "* original 
 
 " . . . executor. 
 
 the country during the testator's lifetime and was absent 
 at his death, the Court held that the substituted executrix 
 was entitled to take probate (d). 
 
 As to substitution in the event of the death of the In the event 
 original executor, the following case is in point (e) : — A. ° is ea . 
 appointed B., C, D. and E. her executors, directing that, 
 in case B. should die, F. should occupy his place. All the 
 executors proved the Will. B. did die, and F. applied that 
 a double probate (/) should be granted to him. Held, 
 that he was entitled to the grant without the consent of 
 the surviving original executors, as the Will showed a 
 clear intention that he should, on B.'s death, succeed him 
 as executor. 
 
 Sometimes a question arises as to whether persons are Whether 
 intended to be substituted at all events, or only on the executor to act 
 happening or not happening of some particular event. ^* *^ events. 
 Thus, where a Will contained the following clause : — 
 . . . " I nominate and appoint my said wife sole executrix. 
 
 (c) In the goods of Oolquhown,, cided on the authority of In the 
 37 L. J. P. & M. 1. goods of Lighton, 1 Hagg. Eoc. 
 
 (d) In the goods of Langford, L. Eep. 235. 
 
 E. 1 P. & D. 458 ; 37 L. J. P. & (/) That is, simply a secoiid 
 
 M. 20. grant of probate after one of several 
 
 (e) In the goods of Johnson, 1 Sw. executors has taken probate in the 
 & Tr. 17 ; 27 L. J. P. &M. 9, de- first instance. 
 
570 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Executor de 
 son tort. 
 
 Points arising 
 from the 
 subject. 
 
 Performing 
 acts of 
 necessity or 
 humanity do 
 not make an 
 executor de 
 son tort. 
 
 and in default of her I nominate and appoint A. and B. 
 to be executors of this my Will." The wife on her hus- 
 band's death took probate of his WiU, but died before 
 she could administer the estate. The question here was, 
 ■whether A. and B. were intended by the testator to be exe- 
 cutors, both in the event of his wife not taking probate, and 
 also in that of her dying without performing the duties 
 of executrix. On the above facts Lord Penzance decided 
 that the testator's intention was that his wife should 
 administer the estate, also that in the event of her not 
 taking probate, or dying without doing so, then that A. 
 and B. were to act as executors. Accordingly, probate 
 was granted to them, and, if we may venture to say so, it 
 seems difiScult to understand how any question could have 
 arisen on the subject {g). 
 
 We have hitherto been dealing with cases where the 
 executor has been duly appointed either directly or by 
 implication, and it now remains for us to consider the 
 position of " another species of these officers, who, whUe 
 deriving no authority from the testator, nevertheless 
 assume the office by their own intrusion and interference. 
 Such an one is styled an executor de son tort, or an exe- 
 cutor of his own wrong " Qi). 
 
 The points for consideration here then are two : — First, 
 what are the acts which will be deemed such an un- 
 authorized intermeddling in the affairs of a deceased 
 person as to constitute the intermeddler an executor de 
 son tort ? Second, — what results from his having so 
 interfered ? At page 467, it is remarked that the 
 interment of the deceased's remains is a permissible 
 and proper proceeding on the part of any one, and it 
 may be stated generally that the performance of acts 
 of necessity or humanity will not render him who 
 does them an executor de son tort. In one of the old 
 
 (g) In the gi 
 2 P. & D. 304 
 
 ods of Forster, L. E. 
 41 L.J. P.&M. 18. 
 
 (h) Toller, Exors. 36. 
 
OF EXECUTORS AND ADMINISTRATORS. 571 
 
 Common Law Eeports (i), however, we find a case in 
 
 which a man was held to be so, merely because he Milking cows 
 
 once held to 
 
 milked the cows of the deceased ; but we need hardly create an 
 say that mention of such a case is useful, simply to indi- ^^'^^^^wt'^ 
 cate the antiquity of the present subject and the peculiar 
 views entertained by our judges of former days. 
 
 Unauthorized acts, which, amongst others, have been Nature of the 
 
 , . , J J.1 ^'^^^ which will 
 
 held to constitute a person executor ae son tort, are the make a man 
 following :— Proving the Will with the money of the ^^^'j™*'"' * *"" 
 dead (k), possessing and converting the deceased's goods 
 to his own use, living in the house and carrying on the 
 trade of the deceased, requesting by advertisement that 
 debts due to the deceased may be paid [i), paying his 
 debts out of his the deceased's assets {I), suing for and 
 recovering debts due to him, releasing- debts due to him, 
 paying legacies, discharging mortgages out of the de- 
 ceased's money, by entering on a lease or term for 
 years (k) and generally the performance of all acts of 
 acquisition, transferring, or possessing of the deceased's 
 estate, will make a man an executor de son tort (m). 
 
 The reason why the above acts have been held to pro- Reason for 
 duce this effect is, that while some of thein are the 
 
 {i) Dyer, 106 (1513-1582). Sir bury the deceased in a decent man- 
 John NichoU, in Zmg v. Symes, 3 ner oat of my own estate." Ibid. 
 Hagg. Eco. Rep. 774, says that {I) Thompson v. Harding, 2 E. 
 ". . slight circumstances are obli- &B. 630; 22 L.J. Q. B. 448. It 
 gatory and sufficient to compel a was held here that if a person, 
 person to take probate if really ap- acting as executor, but not being 
 pointed executor, or to render him really such, pays a debt due from 
 executor de son tort if not really the deceased out of the deceased's 
 appsinted." Sir John also quotes assets, such payment is valid and 
 a shrewd remark of old Swinburne, binding upon ■ a person afterwards 
 "The most safe course is not to appointed as administrator, if the 
 meddle at all, but utterly to ab- recipient of the money really be- 
 stain," that is where one is not lieved the former to be a lawful 
 actual executor. executor. 
 
 (4) 2 Shep. Touch, by Preston, (m) Bao. Abr. Tit. " Exors. 
 
 487; "but to prove another man's and Admors." (B. 3) I. There is 
 
 "Will, at my own charge, will no no such legal term as "jitfoiiraisira- 
 
 more make me chargeable as execu- tor de son tort." 1 Wms. Exors. 
 
 tor of mine own wrong, than to part 1, bk. 3, oh. 5, 266 n. (y). 
 
 such rule. 
 
57E 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Question 
 whether a per- 
 son is executor 
 de son tort is 
 one of law. 
 
 Commission of 
 the acts and 
 their result for 
 the jury. 
 
 Whether an 
 executor proper 
 and one de son 
 tort can exist 
 together. 
 
 Stranger tak- 
 ing goods after 
 probate is a 
 trespasser. 
 
 Stranger 
 taking goods 
 before probate 
 is executor de 
 son tort. 
 
 Value of 
 property ' 
 intermeddled 
 with, imma- 
 terial. 
 
 indicia by which creditors might have bcea led to be- 
 lieve that it was against the person performing them that 
 they could bring their actions when necessaiy, all such 
 proceedings are calculated to produce an impression that 
 the person ca'n-ying them out has previously received the 
 authority of the testator to do so ; in other words, that 
 he is the regularly appointed representative of the de- 
 ceased. Whether such acts as those we have described 
 do or do not make him who commits them an executor 
 de son tort is a pure matter of law ; and, therefore, if 
 such a question arises in a trial, it must be determined 
 by the presiding judge; but, whether the commission of 
 the acts is proved or not, as well as the result of them 
 is a question of fact, and, accordingly, would be left to 
 the jury (%)• 
 
 Where an executor or administrator has been duly ap- 
 pointed to administer an estate, there cannot, strictly, be 
 an executor de son tort at the same time (o) ; for if, after 
 the grant of probate or administration a stranger obtains 
 possession of the deceased's goods, he is a trespasser, and 
 may be sued as such {p) or prosecuted, if his acts amount 
 to a criminal offence. 
 
 But where a stranger obtains po.ssession of the de- 
 ceased person's property hefore probate or administration, 
 he may be charged as executor de son tort, because the 
 real executor can be charged only to the extent of the 
 assets that come into his hands (g). 
 
 The value of the property intermeddled with by a per- 
 son, who by reason of his acts becomes executor de son 
 tort, is not material Accordingly, in one case where such 
 
 (») Padget v. Priest, 2 Term. 
 Eep. 97. This case itself has been 
 considered one of severity against 
 executors de son tort, and with much 
 reason. It is simply this — A. told 
 B. to do certain things as he A. was 
 going to administer a certain pro- 
 perty. B. obeyed, and A, having 
 
 died, both of them were held to be 
 executors de son tort. 
 
 (o) See the remarks of Lord 
 Kenyon in Hall v. Elliott, Peake's 
 N. P. Cas. 87. 
 
 (p) Bac. Abi-. ut supra, n. {in). 
 
 (q) Bac. Abr. Ibid. 
 
OF EXECUTORS AND ADMINISTRATORS. 573 
 
 an one obtained possession o£a bedstead, he was charged 
 with a debt of £60, and in another, where a bible was 
 taken, the taker was saddled with a debt of £100. 
 
 Inasmuch as the performance of acts of necessity will Acts of 
 not cause a person to become executor de son tort, if my "tTangg*^ ^^ * 
 goods are in the house of a deceased person, I may law- 
 fully remove them, without incurring the responsibility in 
 question. Also, if a man dies in my house and has goods 
 there, I may retain them for safe keeping until claimed 
 by his executor or administrator, and the same may be 
 said as to all cases of mistake, or where one acts under Acting under 
 colour of title — of course, in the absence of fraud (r) oolo™ of title, 
 
 IT 1 1 1 c "^ "f wrongful 
 
 • — -but not where the acts are done under coJour oi a administration, 
 wrongful administration. Thus, where a creditor enters 
 upon the goods in order to pay himself, if there be a 
 regular executor or administrator, he may sue the creditor 
 for what he has done, .and if there be no executor or ad- 
 ministrator, the other creditors may proceed against him 
 as executor de son tort (s). 
 
 If a person is appointed in a Will to be the executor Executor may 
 thereof, he may — notwithstanding his having agreed with """""ri^jj, 
 the testator to perform the duties — renounce the office (i) ; grant of 
 
 but if he has in any way intermeddled with the testator's f ™ ^ ' 
 
 •1,1-1 1 .,,1 ""1* ^°* after 
 
 property, he will not be permitted to renounce, but will be having inter- 
 compelled to take probate of the- Will (u). Before he can dg^,'^,^.f^ 
 renounce — supposing him not to have taken probate — he affairs, 
 is obliged to swear that he has not intermeddled with the Oath of 
 
 effects of the deceased, and that he will not do so with executor aud 
 
 administrator. 
 
 « 
 
 (r)'2 Shep. Tench, by Preston, 10 Ves. 93; hut this appears to 
 
 487, 488. involve a contradiction as to the 
 
 (s) Id. Ibid. nature of an executor's position 
 
 {t) 1 Wms. Exors. pt. 1, hk. 3 before probate. If a person not 
 
 ch. 6, § 1, 274. an executor intermeddles, he can- 
 
 (u) Long v. Syrms, 3 Hagg. Ecc. not be compelled to take Letters 
 
 Eep. 771. It has been said that of Administration, either with the 
 
 an executor intermeddling before WiE annexed, or if there is no 
 
 probate ii5 liable to be sued as exe- Will at all ; In the goods of Davis, 
 
 uMtoide son tort. Webster v. Webster, 29 L. J. P. & M. 72. 
 
574 
 
 OF EXECUTORS AND ADMINISTRATORS. 
 
 Executor 
 proper after 
 interfering 
 must take 
 probate. 
 
 Affidavit by 
 executors and 
 administrators 
 that they will 
 rightly ad- 
 minister. 
 
 Executor's 
 oath not an 
 intermeddling. 
 
 Executor can- 
 not renounce 
 after taking 
 probate. 
 
 of term 
 
 "renouncing 
 
 probate." 
 
 The conse- 
 quences which 
 ensue from 
 acting as 
 executor de 
 son toft 
 
 any view of defrauding creditors (x). From this it is 
 seen that a duly appointed executor who once interferes 
 is bound to take probate, and that a stranger interfering 
 becomes an executor de son tort (y). 
 
 Executors and administrators are compelled to make 
 an affidavit that they will properly administer the per- 
 sonal estate and effects of th>e deceased, but merely doing 
 this by an executor will not constitute an intermeddling 
 with the property (a). But an executor cannot renounce 
 after the grant of probate has passed the seal of the 
 Court, nor can the Court allow him to do so after he has 
 once intermeddled (6). 
 
 After he has once taken probate, then, an executor 
 cannot renounce his office, for the general rule is, once an 
 executor always an executor, and by taking probate an 
 executor assumes duties and liabilities which he cannot 
 afterwards shake off (c). 
 
 When we speak of renouncing probate or Letters of 
 Administration, we mean really the giving up the title 
 to receive grants of these, respectively. Accordingly, in 
 all the forms of renunciation, whether of probate, of 
 simple administration, or with a Will annexed, or of pro- 
 bate and administration with Will annexed, the person 
 renouncing says that he abandons his right and title 
 thereto. 
 
 Now we come to consider what are the consequences 
 resulting to a person who has acted as an executor de son 
 tort. " When a man has so acted, as to become in law an 
 executor de son tort, he thereby renders himself liable, not 
 only to an action by the rightful executor or adminis- 
 trator, but also to be sued as executor by a creditor of the 
 
 (x) 1 "Wms. Exors. ut supra, 282. 
 
 \y) Long v. Symes, 3 Hagg. Ecc. 
 Eep. 774. 
 
 (a) McDonnell v. Prendergast, 
 3 Hagg. Ecc. Eep. 212. 
 
 (6) Coote'sProb.Prac. 219, 7th ed. 
 
 (c) Per Sir Cresswell Cresswell, in 
 Goods of Veign, 32 L. J. P. & M. 9, 
 where it appears that an executor 
 though permitted to renounce by 
 the law of Portugal, such permission 
 could not be acknowledged here. 
 
OF EXECUTORS AND ADMINISTEATORS. 575 
 
 deceased, or by a legatee ; for an execxitor de son tort An executor de 
 has all the liabilities, though none of the privileges, that [^ i^uities 
 belong to the character of executor " (d). Nevertheless, tit none of 
 though he cannot by his own wrongful act acquire any a lawful 
 benefit, yet he is protected in all acts not for his oiun executor. 
 benefit, which a rightful executor may do (e). 
 
 The following is a singular case illustrating the liability Case, 
 of an executor de son tmi, : A. purchased of B. a pair of 
 boots and paid B. for them, but they were delivered to a 
 journeyman who would not give them up until A. had 
 also paid him for them. A being sued as executor de 
 son tort of B. it was held that he was liable for the value 
 of the boots as such executor, but should be allowed the 
 sum paid to the joui-neyman (/). 
 
 In the case cited below {g), A, one of thi-ee partners had Executor de 
 died intestate and in debt to B. C, one of the surviv- f^^^^ 
 ing partners carried on the business without taking out property, 
 letters of administration to A. The plaintiffs in the case 
 having distrained for rent due from the firm, C. assigned 
 to them some machinery, to meet the claim in question. 
 B. also, the defendant in the case, having brought an action 
 against C. as executor de son tort of A, recovered judg- 
 ment, and took certain goods in execution. The question 
 here was which of the parties was entitled, and an action of 
 interpleader being brought, G. pleaded the right of sur- 
 
 (d) 1 Wms. Exors. pt. 1, bk. 3, repairing Ms previous wrongful acts, 
 ell. 5, 265. He cannot bring an was dissented from by Wood, V.-C, 
 action in rigbt of the deceased, in Hill v. Curtis, L. E. 1 Eq. 90 ; 
 although if he be in possession of 35 L. J. Ch. 133, and see post, 
 the deceased's goods, he may main- pp. 578, 580. 
 
 tain an action for injuring or taking (/) Hobby v. Mmoell, 1 Car. & 
 
 them away against a mere wrong- Kir. (N. P.) 716. See also the same 
 
 doer. 2 Wms. Exors. pt. 3, bk. 1, case, where A. obtained possession 
 
 ch. 1, 925 and 926 n. (c). of B.'s cattle from C. with whom 
 
 (e) Carmichael v. Carmichael, they were agisted, he paying C. 
 2 Phillips, Ch. Gas. 101. The die- for such agisting, and it was held 
 turn of Lord Cottenham in this case that A. could not recover the sum 
 that an executor de son tort cannot which he had paid to C. 
 
 place him in an equal or a better {jj) Buckley v. Barber, 6 Exch. 
 position than a lawful executor, by Rep. 164 ; 20 L. J. Ex. IK. 
 
576 
 
 WILLS OF PERSONAL PROPERTY. 
 
 No survivor- 
 ship among 
 traders in 
 partnership. 
 Suing an 
 executor de 
 son tort is not 
 admitting him 
 to be kwful 
 executor. 
 
 Act of executor 
 de son tort 
 when good 
 against the 
 true repre- 
 sentative. 
 
 Agency in 
 question of 
 executorship 
 de son tort. 
 
 vivorship, but the Court acted upon the maxim jus 
 accrescendi inter mercatores locum non habet, and there- 
 fore that the surviving partners had no jus disponendi, 
 the property of A. Accordingly, it was also held that 
 the defendant B. by suing C, as executor, had not thereby 
 admitted him to be lawfully so, and was justified in 
 .regarding him as executor de son tort and so dispute the 
 validity of the assignment to the plaintiffs. Baron Parke 
 in delivering the judgment of the Court said " . . . . ad- 
 mitting that C. in joining in the conveyance sanctioned 
 thereby the transfer on behalf of the others to the entirety 
 of the chattel, and would, if he had been lawful executor, 
 have been stopped from claiming the property of the 
 testator against the plaintiffs, we do not think the act of 
 an executor de son tort can have the same effect. The 
 act of an executor de son tort is good against the true 
 representative of the deceased, only when it is lawful, and 
 such an act as the true representative would be bound to 
 perform in the due course of administration. That was 
 settled in Glazebrook v. Fox Qi). This pledge . . . was 
 one which the rightful executor was not bound to perform 
 . . . and was therefore not good as against the true exe- 
 cutor when done by the executor de son tort : that is to 
 say, the chattels did not cease to be part of the estate of 
 the deceased, and therefore could be lawfully seized nnder 
 an execution against his goods and chattels." 
 
 We now come to consider the question of AGENCY in 
 these cases of wrongful executorship, that is to say, when 
 a person acting with, and under the direction of, an exe- 
 cutor de son tort may himself achieve that unenviable 
 position. We will first mention the peculiar and very 
 strong case of Sharland v. Mildon, decided in 1846 by 
 Vice-Chancellor Wigi-am (i). There, according to the 
 reports of this case, and which it seems are not quite so 
 
 (h) Plowd. 282 (1550-1680). An 
 executor de son tort may also ad- 
 minister assets in the lawful course. 
 
 Oxenham v. Clapp, 2 B. & Ad. 309; 
 9L. J. K. B.229. 
 (i) 5 Hare, 469 ; 15 L. J. Ch. iSi. 
 
OF EXECUTORS AND ADMINISTRATORS, 577 
 
 V. 
 
 full as they ought to be (k) — A. having appointed his wife Sharland 
 executrix of his Will, died. She, before taking probate, ^^^'^°'^- 
 employed B. to collect his assets and debts. The probate 
 was contested in the Ecclesiastical Court, but before the 
 matter was decided the widow died. Administration was 
 then granted to other parties. Against these, the repre- 
 sentative of the widow, and also against B., a bill in 
 Chancery was filed by a person claiming under the Will, 
 for a general account of the testator's estate. Under these 
 circumstances, the question was, whether B. should be 
 dismissed from the suit, or whether he was an executor 
 de son tort, and so should be retained as a party. B. by 
 his answer to the bill, admitted that he had received 
 debts and collected debts, but insisted that he had done 
 merely as the agent of the widow to whom he had duly 
 accounted. The Vice-Chancellor, after noticing the case 
 of Padget v. Priest {ante, p. 572 n.), pronounced that before 
 him to be one of great hardship to B., and then stating in 
 effect that he had striven, but in vain, to find some loophole 
 of escape for him, thus proceeds : — " It seems established, 
 that if a party had received the money and had not paid 
 it over, he would be liable : if that be so, it seems to 
 follow logically, that he cannot discharge himself, except 
 by paying it over to the legal representative. I had Executor de 
 hoped to have found a ground for holding that he . . . purge^hiT*^ 
 might be looked upon as a mere ministerial character . . . offence by 
 but the result of my inquiries is, that the doctrine declar- money ^d^ 
 ing a receipt of an agent to be a receipt of the principal ®^*j *" 
 does not apply to the case of a wrong-doer. B. was a preaentative, 
 wrong-doer, and knew what he was doing ; he must, there- i^ZghT^"'' 
 fore, remain a party to the suit." 
 
 {k) Concerning this case — the jus- inference, that the widow, treated 
 
 tice of which as gathered /rom iAe as wrong-doer was rightful executrix 
 
 reports is not quite apparent — we actinghefore probate, yet, in fact, she 
 
 transcribe a portion of a note to was not so, and was strictly in the 
 
 the case of Sykes v. Sykes, given in position of a wrong-door. A perusal 
 
 The Law Jownal Reports, Vol. 39, of the Bill of Complaint .... has 
 
 p. 181. "Though the reports of put this beyond doubt. " 
 ^Aarfamdv.ifi'HcMi might lead to the 
 
578 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 No agency 
 between tort 
 feasors. 
 
 The above case, 
 how far ap- 
 plicable to 
 others. 
 
 This decision of Vice-Chancellor Wigram has, in , a 
 comparatively recent case, been pronounced by a highly 
 distinguished judge to be '' a very clear exposition of what 
 the law really is," namely, that as between wrong-doers, 
 the relation of principal and agent does not exist ; also that 
 an executor de son tort may repair his wrong by trans- 
 ferring the property of the deceased to his true represen- 
 tative. But this latter remark only applies to cases where 
 he has handed over the goods, &c., before an action has 
 been brought against him, because, if after this has been 
 done he were permitted to plead the transfer, the person 
 bringing his action would have to proceed de novo against 
 the real executor (l). 
 
 The sense, however, in which the doctrine of Sharland 
 V. Mildon is to be taken so as to make it applicable to 
 other cases of agency in connection with executorship de 
 son tort is another matter. What is here meant will be 
 perceived from a case decided in the Court of Common 
 Pleas in 1870 (m). Here, an executor. A., before taking 
 probate, employed, or rather perhaps allowed, an agent 
 B., to carry on the business of his testatrix. A year after 
 the deceased's death, C. brought an action against B. and 
 recovered judgment which recited a writ issued by C. 
 "against B., executor of E. S., deceased," also that the said 
 " B., as executor aforesaid," had not appeared, and ad- 
 judged that the said C. should recover against the said B. 
 Subsequently a writ o{ fi. fa. was issued, directing the 
 High Sheriff, the defendant in the case, to levy on the 
 goods of B., as executor of the deceased's estate, which he 
 did. The actual executor then proceeded to prove the Will, 
 and having done this, brought an action against the Sheriff 
 and C. for taking and converting the goods of the plaintiff 
 as executor of E. S. The question left to the jury was, 
 
 (?) See the judgt. of Sir "W. P. Exors. pt. 1. bk. 3, ch. 5, 2fi8, 
 
 Wood, V.-C. (Lord Hatherley), in n. (g). 
 
 Sill V. Cn/rtis, L. R. 1 Eq. 90 ; (m) Sykes and others v. Sylces 
 
 35 L. J. Ch. 133, to which we shall and another, L. R. 5 C. P. 113 ; 
 
 refer again presently ; also 1 Wms. 39 L. J. C. P. 179. 
 
OF EXECUTORS AND ADMINISTEATOES. 579 
 
 whether B. was in possession of the goods to be adminis- 
 tered by him as executor de son tort, or whether these 
 were in his hands as agent of the real executor {n), and 
 the jury found that he was acting in the capacity of agent 
 to A. Whereupon the verdict was entered for C, but 
 against the Sheriff, with leave, however, to him to move to 
 enter the verdict for himself, or for a nonsuit on the ground 
 that he was justified under ih&fi. fa. in seizing the goods. 
 A rule nisi having been obtained accordingly, the Court of 
 Common Pleas unanimously discharged it. 
 
 It might, perhaps, be asked in the first place. Why B. Executor de 
 did not deny that he was executor de son tort, and so put g^mj cannot 
 that fact in issue ? The answer is, that the rule of law de- deny that he is 
 
 executor. 
 
 clares that if a person by any ovei-t act holds himself out as 
 
 being invested with the authority of atestator to transact the 
 
 business appertaining to the settlement of his affairs after 
 
 his death, such person, so far as creditors are concerned, 
 
 thereby renders himself liable to be sued like a lawful 
 
 executor, and he cannot set up his assumed character as 
 
 an answer to their decctands. Accordingly, he may be The real 
 
 sued in either character, but the great questions in Syhes s^lfs T^s'ics 
 
 V. Syhes were, first whether B., who carried on the business 
 
 for the executors (o), they not having taken probate, was their 
 
 agent ; and second, whether they were wrong-doer^ or really 
 
 possessed authority to appoint the man as their agent. So 
 
 that, in fact, as stated by the Lord Chief Justice Bovill, the 
 
 matter turned upon the powers of executors before probate. 
 
 The Court held that the executors being persons duly Decision of the 
 appointed as such, were not wrong-doers, consequently °" ' 
 that their agent was not a wrong-doer, and that as the 
 goods of the testatrix were not in the hands of B. to be 
 administered, the sheriff had no right to levy on them ; 
 
 (k) ' ' This was a fit question for her husband's husiness after his 
 them and was left in the same terms d«ath in the same place and on her 
 a.sinCottUY.Aldrich;"i'M..&,Si.n5. own account, she was held to he 
 Per Bovill, C. J., in Syhes v. Syhes. executor de son tori, see Hooper v. 
 
 (o) Where a widow carried on Summerseit, Wightwick's Eep. 16. 
 
 p p 2 
 
580 
 
 WILLS OF PERSONAL PROPERTY. 
 
 An actual ex- 
 ecutor cannot 
 be a wrong- 
 doer in regard 
 to the perform- 
 ance of duties 
 where lawful 
 before probate. 
 
 Expiation of 
 offence by ex- 
 ecutor de son 
 tort, bow 
 effected. 
 
 Mill V. Curtis. 
 
 further, that as the writ directed him to take the goods 
 which were in B.'s hands as executor, the argument that 
 they were goods of the testatrix merely in the custody of 
 B. was not tenable. 
 
 " It seems, however, to me," said Brett, J. 0., " that sit- 
 ting in a Court of Law, we must, after the cases that have 
 been decided, particularly Cottle v. Aldrich (n), hold that 
 these executors were not wrong-doers ; nor indeed is there 
 any case in favour of such a proposition, unless indeed 
 Sharland v. Mildon is treated in the sense contended for 
 by the defendants : a sense which I do not think correct." 
 
 This observation, however, is of rather too sweeping a 
 character as to there being no case to support the proposi- 
 tion that the executors had acted in a wrongful manner, 
 but we may assume it to be now settled that a duly ap- 
 pointed executor who performs acts within the scope of 
 his authority before probate, cannot be deemed a wrong- 
 doer, and consequently that a person employed by him in 
 transacting the business of the deceased's estate will not 
 be so considered. " 
 
 Hill V. Curtis was a case of intestacy, where a person 
 in the position of an executor de son tort was held from 
 subsequent proceedings on his part to have expiated the 
 wrong he had previously committed. The facts here were 
 somewhat voluminous, but they may thus be shortly stated. 
 A. having died intestate, two of his creditors, G. and D., 
 took possession of the effects and transacted certain busi- 
 ness in connection therewith. Administration having 
 been granted to the widow of the deceased, she died, and 
 administration of the goods not administered was granted 
 to the deceased's eldest daughter, E. Two of the children 
 of A. then filed a bill against C. and D., praying for an 
 account from them as executors de son tort, and with these 
 defendants were joined E. and her husband. The bill 
 charged that the defendants C. and D. had never delivered 
 up tii E. the intestate's personal estate, but had induced 
 
 (m) Supra n. (n.) 
 
OF EXECUTORS AND ADMINISTRATORS. 581 
 
 her to act in relation thereto as they had directed. The Agency, 
 defendant D. answered that so far as he had intermeddled 
 with the effects, he had done so by the authority and at 
 the request of the lawful administratrix ; further that he 
 had duly accounted to her, and to support this answer a 
 deed purporting to be a settlement of affairs as between 
 the parties was put in evidence. Here there was a ques- 
 tion of agency, and the Vice-Chancellor having found that 
 the fact of agency was clearly established as to D., the 
 point for decision was the extent of legal liability arising 
 out of that relation. 
 
 Sir W. P. Wood, after stating that the agency had been Effect of act- 
 proved, both as regarded the widow and the daughter, ob- ^"^ ^ agent, 
 served that the deed of arrangement was of a perfectly satis- 
 factory character, and he held that although the administra- 
 trix had acted wrongfully before receiving the grant of admi- 
 nistration, yet that directly she had become duly authorized Letters ol 
 to act, her title to do bo related back to all her intermediate relatrback'to" . 
 acts, and thus ratified them (p). "And," he continued, time of tes- 
 " why not to the appointment of agent as well as to her and to all inter- 
 other acts ? If so, was not D. the agent of this lady, and mediate acts. 
 properly suable only by her. Can he, as agent, be suable 
 by those persons who claim a right to the assets ? I am 
 of opinion that he cannot, and, therefore, finding as I do 
 clearly from the evidence that he acted as agent, and sub- ' 
 sequently settled the account with the concurrence of all 
 parties, showing the utmost bona fides, I cannot hold that 
 he is accountable to the plaintiffs." D., therefore, although 
 he had been in the position of an executor de son tort 
 was held to have acted bond fide, and by duly accounting 
 for all the assets of the deceased in his hands to have 
 purged his previous wrong. As to the other defendant Executor de 
 in the above case, C, his Honour said that, he having '°^\Xi^'™^ 
 had property handed over to him by an executor de son goods to 
 
 {p ) Letters of Administration administrator to sue, and to vest Relation back 
 
 also, at what time soever granted, the property in him generally. See for all pi^r- 
 
 relate hack to the date of the in- Foster v. Bates, 12 M. & W. 226 ; P?^^^ "^ letters 
 
 t«state's death, so as to enable .an 13 L. J. Ex. 88 ; per Parke, B. oj^admrnistra- 
 
582 
 
 WILLS OF PEESONAL PROPERTY. 
 
 another does 
 not place the 
 latter in the 
 same position. 
 
 Chain of repre- 
 sentation is not 
 maintained by 
 executor of ex- 
 ecutor de son 
 tart. 
 
 Lessee dying 
 intestate, and 
 a person taking 
 his lease not 
 held to be exe- 
 cutor de son 
 tort. 
 
 tort, which the latter had no right to touch, he, the 
 defendant could not be followed in respect of that, it 
 having been carried into the mixed account of himself 
 and D. {q). 
 
 We stated at page 370, n. {p), that according to the 
 rule known as that of the chain of representation, if C. is 
 executor of B.'s WiU, and B. is the executor of A., C. is 
 also executor of A.'s Will, prmnded that B. proved C.'s 
 Wm, and A. has proved B.'s (r). This rule cannot be 
 
 Case where a 
 man dealing 
 with a lease 
 became exe- 
 cutor de son 
 tort. 
 
 (?) On the authority of Paidl v. 
 Simpson, 9 Q. B. Eep. 365 ; 15 L. 
 J. Q. B. 382. In this case a lessee 
 having died intestate, his widow 
 entered and paid rent, and after- 
 wards, without any assignment of 
 the lease in writing, A. took the 
 premises. The questions were : — 
 (1) "Wiether A. was assignee of the 
 premises ; (2) Was he executor de 
 son tort ; and the Court unanimously 
 -held him to be neither. ' ' It was 
 contended," said Wightman, J., 
 "that as the defendant took from 
 the widow, he was himself executor 
 de son tort; now [although she 
 might have beeu chargeable as such, 
 yet] the passages referred to In Go- 
 dolphin (pt 2, c. 8, s. 1), and 
 Comyn's Digest ( ' Administrator, ' 2) 
 are expressed to show that that is 
 not so. And it is very reasonable 
 that the law should be as it is, 
 otherwise there would be no limit 
 to the number of executors de son 
 tort." The law ou this point, 
 cited in the above case, is thus 
 shortly put in 1 Wms. Exors., 
 pt 1, bk. 3, ch. 5, 263 :— " If 
 another man takes the goods of the 
 deceased, and sells or gives them to 
 me, this shall charge him as execu- 
 tor of his own UTong, but not m«." 
 But read in connection with PavXl 
 V. Simpson, the case of Williams v. 
 Seaks, L. K. 9 C. P. 17r ; i3 L. 
 J. Q. P. 80, where a man was held 
 
 executor de son tort, and liable 
 upon the covenants in a lease which 
 had been broken, he having dealt 
 with the lease just as if he himself 
 were holding on its terms, and the 
 defendant in this case, besides being 
 executor de son tort of an executor 
 de son tort, had by his acts also 
 constituted himseK such. 
 
 (r) SeeDavenporty. Stafford, 2X)e 
 G. JL & G. 901, as to the liability 
 of an executor of an executor for as- 
 sets, and Palmer v. Palmer, 43 L. J. 
 Ch. 349, as to the right to his costs 
 of an executor of an executor where 
 litigation has taken place in conse- 
 quence of a misapplication of assets 
 by the original executor (21 & 22 
 Vict. c. 95, s. 16), Court of Probate 
 Act, 1858, which provides that an 
 executor who will not act, or ap- 
 pear when cited to take probate, is 
 to be treated as if he had renounced 
 his office. See Wankford v. Wank- 
 ford, 1 Salk. 309 (1689-1712) as to 
 the necessity for the first executor 
 to prove his testator's Will ; and as 
 to the meaning of the above section 
 of the C. P. A. 1858, In the goods 
 of Larimer, 2 Sw. & Tr. 471 ; 31 L. 
 J. P. & M. 189. As to the effect 
 of an executor renouncing probate, 
 see 20 & 21 Vict, c, 77, s. 79 (Court 
 of Probate Act, 1857), with which 
 read 'So. 50 of the Principal Regis- 
 try Rules of 1862 in Non-Conten- 
 tious Business. 
 
OF EXECUTORS AND ADMINISTRATORS. 583 
 
 observed where there are several executors until one only 
 remains, because, as we have seen, they — and administra- 
 tors also — are subject to the rule of survivorship, and when 
 one dies, his power is not transmissible to his nominee but 
 accrues to the remaining co-executors ; but the survivor 
 of them all may, by his Will, transmit his power to his own 
 executor. Where one of several executors renounces pro- 
 bate his interest ceases, and he is in the position of a 
 perfect stranger as regards the deceased's affairs. 
 
 Now the above-mentioned doctrine as to the continuity Executor of 
 
 p ... i_ _i.-i T. jj executor de 30)" 
 
 of representation, when certam rules are observed, does tor* not liable 
 not apply to an executor de son tort, so that the executor of " ^* ^'^ " (»)• 
 an executor de son tort, simply because he. is so, is there- 
 fore, not liable at law (s), the reason being that as no one 
 can while living appoint an agent, qua such, to commit a 
 wrong on his behalf, a fortiori he cannot by his Will 
 transmit such an authority. Yet the executor of an 
 executor de son tort, may, by his own acts, actually become 
 so himself, in which case he is liable, as in Williams v. 
 Heales, where a man was really the executor de son tort 
 of an executor de son tort. 
 
 Again, the administrator of an executor cannot trans- Administrator 
 mit his authority to his own representative, because such °* executor. 
 administrator was never deputed by the person whom he 
 represents to act for him, but was empowered by the law 
 to do' so. Thus, if B. is the executor of A., and B. dies 
 intestate, and C. is appointed B.'s administrator, C. cannot 
 
 {s) Anonynwits case in 2 Mod. of jurisprudence, and by the Judica- 
 
 Eep. 293 (1669-1732). In the event ture Act, 1873 (36 & 37 Vict. u. 66, 
 
 of a person acting as the executor sect. 25, sub-sect. 11, the rules 
 
 of an executor de smi tort, he would formerly observed in Equity are to 
 
 be liable to account for what he has prevail over those of the Common 
 
 received in the Chancery Division Law, where any conflict or variance 
 
 of the High Court of Justice as a arises between them on the same 
 
 constructive trustee. The terms matter and that matter has not 
 
 " at law," and " in equity," are not been referred to by the said Act of 
 
 now applicable as denoting proceed- Parliament, 
 ings or rules under dilfeient systems 
 
584 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Administra- 
 tion de bonis 
 rum, what it is. 
 
 Executor of an 
 administrator. 
 
 Administra- 
 tion to two ac- 
 crues to the 
 surviTor. 
 
 Administer of 
 administrator. 
 
 transmit the right to administer A.'s estate, for the reason 
 that as no privity existed between B. and C. in the matter 
 of executorship, there was none between C. and A. Ac- 
 cordingly, if B. had not had time to perform his duties in 
 regard to A.'s estate, C. would not of right have been 
 entitled to do so, but a person — it may be C, as in the 
 case cited below {t) — will be appointed to administer the 
 unadministered portion of the property, and such person 
 is styled administrator de bonis non administratis or 
 de bonis non, or more shortly, de- bonis. And the same 
 thing happens where the administrator of an intestate 
 ceases to act by reason of death, removal, and so forth (u), 
 and the intestate's effects are not administered. 
 
 Nor can the executor of an administrator transmit the 
 right to do what such administrator ought to have done : 
 so that, if A. dies intestate, and B. is appointed his ad- 
 ministrator, and C. is B.'s executor, C. possesses no trans- 
 mitted right to interfere with the estate of A. ; in other 
 words, he is not necessarily the representative of A., but 
 as before, when necessary, an administrator de bonis non 
 will be appointed. "Where administration has been 
 granted to two and one dies, the survivor will be sole 
 administrator, for it is not like a Letter of Attorney to 
 two, where by the death of one the authority ceases, but 
 it is an office analogous to that of executor which survives. 
 Upon the death of such surviving administrator, or of a 
 sole administrator, the Court, whether the administrator 
 died testate or intestate, must appoint an administrator 
 
 {t) In the goods of Hiclcs, L. E. 
 1 P. & D. 683 ; 39 L. J. P. & M. 
 27. Here, A. having appointed B. 
 his executor, died. B. proved the 
 Will, but died before administering 
 A.'s estate, and the Court made a 
 grant de bonis to C, the adminis- 
 trator of B., because the parties 
 entitled to priority of right to ad- 
 minister were abroad. The Court, 
 however, required security from C. 
 
 to the amount of their interest in 
 the property. 
 
 (u) 2 Steph. Comm. pt. 2, ch. 7, 
 sect. 3, p. 212, 5th ed. ; 1 Wms. 
 Exors. pt. 1, bk. 3, ch. 4, 254, 245. 
 As to who is entitled to be ap- 
 pointed as administrator to an 
 original intestate on the death of an 
 administrator de bonis non, see 
 1 Wms. Exors. pt. 1, bk. 5, ch. 3, 
 § 2, 474. 
 
OF EXECUTOES ANB ADMINISTRATORS. 585 
 
 de bonis non ; for an administrator is merely the officer 
 of the Court, prescribed to it by Act of Parliament, in 
 whom the deceased has reposed no trust ; and therefore 
 on the death of the administrator, no authority can be, 
 transmitted by him to his executor or administrator, but 
 it results to the Court to appoint another officer " {x). 
 
 An executor is bound, and so is an admiaistrator cutti Executor carry- 
 testamento annexo, to give effect to all lawful directions, ^°|i™g*g l^ ^ 
 — or such as the law recognises the validity of — ^contained deceased per- 
 in the Will ; but to this rule there is one exception, or latte/s diec- 
 perhaps, speaking with strict accuracy, an apparent excep- *i™' 
 tion ; we refer to a direction by a deceased trader, that his 
 executors shall carry on his business after his death (y). 
 
 Now, just as the decease of a partner in busioess effects Death of a 
 a dissolution of the partnership, so the decease of a person t^^er deter- ^ 
 trading by himself is presumed in law to bring his business mines his 
 to an end. If, therefore, a testator directs his executor to 
 carry on his business, that is, buy and sell, as he himself 
 did in his trade, after his death, he requires such executor to 
 do that which, though not absolutely forbidden by the law, 
 yet is at any rate almost assumed to be without its scope The law does 
 and protection, and therefore an act fraught with danarer "°* recognize 
 
 ^ . . " _ ° an executor 
 
 to him who performs it. Such being the case then, if an carrying ou his 
 executor carries on the business of his deceased testator, nes*s^*ex«spt'to" 
 even by the latter's express direction, either with all the - make him per- 
 money left or only a part thereof, he will do so entirely at for profits and ' 
 
 (x) 1 Wms. Exors. pt. 1, bk. 5, observed that when the law speaks 
 
 ch. 3, § 2, 474. Note. — There is of executors not carrying on the 
 
 no such a thing as an administrator business of their testator, it means 
 
 de son tort. tJiat they are not to luy and sell. 
 
 (y) By "carrying on" a business, There are many cases when executors 
 is here meant doing so in the same not only may, but are bound to con- 
 continuous manner as the testator tinue the business to a certain ex- 
 would have done had he lived ; so tent," as where a publisher under- 
 that merely clearing out stock or takes to publish a work in parts, and 
 executing orders given before the other similar cases ; 2 Wms. Exors. 
 testator's death will not make an pt. 4, bk. 2, ch. 2, § 1, 1794 ; and 
 executor liable to be sued as "carry- see Moseley v. Eendell, L. R. 6 Q. 
 ing on" the business. Toller, B. 338 ; 40 L. J. Q. B. 111. 
 Exors. 487. Also, "it mu.st be 
 
5S6 WILLS OF' PERSONAL PEOPEKTY. 
 
 his own risk and peril, and a fortiori he will do so, if he 
 carries on the business wholly on his own authority. In other 
 words, assuming an executor to comply with his testator's 
 . directions on this point, and the business succeeds, then the 
 profits are part of the testator's assets, and belong to the 
 persons who are the beneficial owners of the corpus under 
 the Will; if, on the other hand, the business fails, the 
 executor is in this case — just like an executor becoming 
 Executor liable a member of a deceased partner's firm (z) — liable both in 
 sonally^U person and pocket, even to his own bankruptcy. More- 
 losses out of over, in the case of trading with a sum of money specified 
 to be°made^'' hy the testator, the estate of the latter will be liable only 
 bankrupt. iq gudj extent, while the executor's private property will 
 
 have to bear all losses over and above that sum (a). 
 Case illustra- To show how unfavourably, or rather, harshly, the law 
 
 ting the dan- i , , . xi i • i- -l • 
 
 serous posi- regards an executor who carries on the busmess oi nis 
 tion of an testator, even where by the Will directed to do so, we 
 carrying on his may cite the case of Lucas V. Williams (b). There, one 
 of several executors, who were carrying on their testator's 
 trade, gave a promissory note to a person at a time when 
 the testator's estate was insolvent, a fact, however, of 
 which the executor was quite ignorant. The Court of 
 Chancery, nevertheless, held that the executors were 
 personally liable to the payee. Further, an executor who 
 carries on the trade of his testator in the most successful 
 manner, is not entitled to any remuneration whatever ; 
 and if he carries on his testator's business under any 
 circumstances whatsoever, all he earns will be assets of 
 the testator's estate for which he will be accountable (c)_ 
 
 is) See on this subject Yyse v. there and in Toiler, Exors. 487. 
 i-teter, and the arguments and cases (b) 3 Giflf. 150; see also Liver- 
 
 cited there, L.E. 8 Ch. 309 ; affirmed pool Borough Bank v. Walker, 
 
 in the House of Lords, L. E. E. & I. 4 De G. & J. 24, where a similar 
 
 App. 319 ; 44 L. J. Ch. 37 (1874) ; decision -was given on a bill of ex- 
 
 Broughton v. Broughkm, 44 L. J. change, accepted by executors, as 
 
 Ch. 626. such, who wore carrying on their 
 
 (a) Lindley on Partnership, 809, testator's busini'Ss. 
 882 ; 2 Wms. Exors. pt. 4, fek. 2, (c) 2 Wms. Exors. pt. 4, bk. 1, 
 
 ch. 2, § 1, 1791, 1798 ; and Ex ch. 1. 1658. 
 parU Ga/rland, 10 Ves. 110, cited 
 
 testator's 
 business. 
 
OF EXECUTORS AND ADMINISTRATORS. 587 
 
 It is, however, in the power of the High Court of Justice ^o^^ev of the 
 to allow an executor so situated his reasonable expenses (d), remunerate an 
 especially where the duties performed by him are of an f^eoitof.for 
 
 ...„,. loss of time, 
 
 unusual character, and such executor is justified in him- &c. 
 
 self paying for strictly necessary assistance in carrying out Executor oarry- 
 
 the testator's directions. justified in 
 
 It is clear then that a direction in a Will to an executor v^y}^s for 
 
 . . assistance. 
 
 to carry on his testator's business, not only impresses him 
 with the character of a trustee, in which capacity he acts 
 when carrying on the business, but it also is one calculated 
 to place him in a very awkward and perilous situation. 
 Accordingly — as stated in a practical work of high "Wills contain- 
 authority — " Wills containing a direction for the carry- carry^on busi-" 
 ing on of the testator's trade ought to provide against ness should 
 the event of the executor declining to do so, and should of indemnity, 
 also authorize him, if he should commence the undertaking *°;' *o«"- 
 
 ... ° cutor. 
 
 to relinquish it at any time ; since a person may other- 
 wise be induced to renounce the executorship altogether, 
 as the only means of escaping from the hazards which the 
 testator has annexed to the office " (e). It therefore be- Caution re- 
 hoves an executor with a direction of this kind before him, 1™^®^ ^^ 
 
 ' executor carry- 
 
 to be extremely cautious how he acts, even where the ing on business 
 Will seems to give him great latitude of action, and armeririth 
 also appears in terms to declare that he shall be irre- considerable 
 sponsible, or not liable to loss, for what he may do (/). 
 An executor in such a position has three courses open to Three courses 
 him, namely, to renounce his office, apply to the High open to an ex- 
 
 ' •' ' . ' ^^ •' o eoutor directed 
 
 Court of Justice for authority to act (g), or proceed upon to cany on 
 his own judgment. But the High Court it appears has "^"'^• 
 
 ii ■ 7 • • J , , The High 
 
 no power to authorize an admvmstrator to carry on the Court cannot 
 trade of an intestate, even where infants are interested Qi). 
 
 (d) See 2 "Wm.5. Exors. pt. 4, bk. Stuart, V.-C, 22 L. J. Ch. 320. 
 2, ch. 2, § 2, 1852. {g) By bringing an adminis- 
 
 (e) Hayes & Jarmau's Forms of tration action in the Chancery Divi- 
 "Wills, 8th ed. by Dunning, 322 n. sion of the H. C. J. Judicature 
 
 (/) As in M'Neillie v. Acton, Act, 1873, sect. 34, sub-sect. 3. 
 4 De G. M. & G. 744 ; 23 L. J. (h) Land v. Land, 43 L. J. Ch. 
 
 Ch. 11, reversing the decision of 311, distinguishing Tinkler v. 
 
 authorize an 
 administrator 
 to carry on 
 business. 
 
588 
 
 WILLS OF PERSONAL PKOPEETY. 
 
 Caution re- 
 quired by 
 executor carry- 
 ing on business 
 ■where will con- 
 tains a clause 
 of indemnity. 
 
 The case of M'Neillie v. Acton is one which well 
 illustrates the previous observations as to the necessity for 
 caution on the part of executors where a WiU, directing 
 a business to be carried on, contains a clause of indemnity. 
 For present purposes it may be thus stated : — A., by his 
 Will, after directing that his debts, &c., should be a charge 
 upon his estate, directed that B. and C, his executor and 
 executrix, after his death should, without liability to loss 
 on their part, continue his business, which was that of a 
 colliery proprietor, and he gave them authority to com- 
 pound debts, and settle all matters relating to his estate. 
 The testator at his death was entitled to a lease of certain 
 mines. mentioned in his Will for a term of years, eight of 
 which were then unexpired. The executrix, after marry- 
 ing again, borrowed money upon the security of a deposit 
 of deeds, expressly for the purposes of the colliery (i), 
 
 Mindmarsh, 2 Beav. 348, whioliwas 
 a creditor's suit. In Land y. Land 
 the present Master of the Kolls 
 advised the administratrix apply- 
 ing to the Court to sell the intes- 
 tate's business as soon as possible. 
 In BoUngbroke v. Kerr, L. R. 1 Ex. 
 222, reported in a slightly different 
 manner in 35 L. J. Ex. 137, it was 
 held that au administrator could 
 not be joined as a plain tiif iu an 
 action for goods sold and delivered, 
 in other words, could not in his 
 representative character, while car- 
 rying on the intestate's business, 
 and not for the benefit of the estate, 
 sue on contracts made after his dea,th. 
 But this decision proceeded on the 
 ground that the money sought to 
 be recovered would not have been 
 assets, because the business was 
 not being continued for the benefit 
 of the estate : had such sum been 
 assets then tlie administratrix iu 
 the case might have sued. See 
 post, p. 694. 
 
 (i) In Colyer v. Finch, 5 H. L. 
 
 Gas. 905 ; 26 L. J. Ch. 65, which was 
 a case of a devisee, who was also an 
 exeeutor, mortgaging lands. Lord 
 Cranworth, C, observed that it 
 would not matter whether a mort- 
 gage effected by such a person was 
 stated distinctly to be made for the 
 purpose of paying debts, nor that 
 where a sale took place the pur- 
 chaser would be bound to inquire 
 whether the object was to raise 
 money for payment of debts. But, 
 of course, where it appears plainly 
 that the e.xecutor selling or mort- 
 gaging is not acting bond fide, the 
 case is different, and property mort- 
 gaged or sold, under these circum- 
 stances, is just as liable in th? 
 hands of the purchaser or mort- 
 gagee to all the charges upon it as 
 it was in the hands of the executor. 
 See Watkins v. Cheek, 2 Sim. & S. 
 199, and Oorsery.Cartivright, L. R. 7 
 H. L. 731 ; 45 L. J. Ch. 605, where 
 the above cases are cited with ap- 
 proval, also Elliott V. Merriman, 1 L. 
 C. Eq. 59, 81, the leading case on 
 
OF EXECUTORS AND ADMINISTRATORS. 589 
 
 and on a bill being filed by the equitable mortgagee 
 against C. and her husband, it was held by Stuart V.-C, 
 that the executors had the power of pledging the real 
 estate of the testator during the unexpired term — eight 
 years — for the purpose of carrying on the business, and, 
 therefore, made a decree in favour of the plaintiff. On 
 appeal, the Lords Justices Knight-Bruce and Turner Executors act- 
 reversed this decision, and declared that the executors 
 had not such power. In this case it was argued that Testator charg- 
 because the testator had charged his estate with the pay- -vvitb payment 
 ment of his debts, and as the money was borrowed by the »* /ebts^oss 
 
 ' •' •> not protect 
 
 executrix, admittedly for the express purpose of effecting executors when 
 the direction as to carrying on the colliery business, that ^i,.^"f " *™ 
 therefore the executors had acted within the scope of their 
 authority, and that the equitable mortgage constituting a 
 debt was payable as such under the terms of the Will. 
 Lord Justice Turner, however, thus points out the fallacy 
 in this reasoning : — " Now, whj"- is it that the real estate 
 is charged under the direction for the payment of debts 
 contained in the Will ? In the first place, there is a moral Because the 
 duty incumbent on the testator, who makes his Will, to morally'bTund 
 pay his debts ; and in the second place, which is, perhaps, ^ P^y ^^ 
 
 ^ •' , ,. 1 1 • ' t^ if > debts, is not so 
 
 the better reason tor those words operatmg as a charge on bound to direct 
 the real estate, those words would have no operation J^'^ ''"^''ess to 
 
 ' J^ be earned on. 
 
 whatever unless they were construed to charge the real 
 estate, for the law itself charges the personal estate with 
 the payment of debts ; and, therefore, it is a necessary 
 construction that when a man directs his debts to be paid, 
 he means to do more than the law would itself have 
 done (k), and therefore to charge his real estate by virtue 
 
 the subject of a purchaser's non- (i) This judgment was delivered Lord St. 
 
 liability to see to the application of in 1853. Since then an Act of Leonards' Act. 
 
 the money, when dealing with exe- Parliament has been passed known 
 
 cutors and there is no fraud. As as Lord St. Leonards' Act, 22 & 23 
 
 to the similar non-liability of a Vict. c. 35 (August 13, 1859). 
 
 person making payments to <nwfees. It is there enacted that, where by 
 
 see 23 & 24 Vict. o. 145, Lord any Will which shall come into 
 
 Cranworth's Act. operation after — but not before— the 
 
590 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Executors, 
 even "where 
 directed to 
 carry on busi- 
 ness, must not 
 employ more 
 money therein 
 than they 
 found there. 
 
 Executors 
 effecting an 
 equitable 
 mortgage. 
 
 of that direction. But no such reasons at all apply to 
 the case of a direction to carry on his trade. There is no 
 moral duty incumbent on the testator to direct the trade 
 to be carried on ... . and the real question is whether, 
 on the construction of the Will, a mere direction to con- 
 tinue the trade of the testator ought to charge all his 
 real and personal estate with debts contracted in the 
 course of his trade .... No case has been cited which 
 has yet gone to that length." Accordingly, a mere direc- 
 tion in a Will to pay debts cannot operate as a charge of 
 the trade debts contracted in continuing the trade. 
 
 The Court also in this case determined a matter of 
 veiy great importance in connection with the present sub- 
 ject, namely, that in the absence of any authority to do 
 so, executors are not justified in employing more of the 
 assets in carrying on their testator's business than they 
 found so employed at his death. And further as to the 
 plaintiff, his position was adjudged to be this : — he was not 
 entitled to claim as equitable mortgagee, because the 
 executors had no right, according to what has just been 
 
 passing of the statute, the testator 
 shall have charged his real estate 
 or any specific portion thereof, with 
 the payments of his debts or lega- 
 cies, or other specific sum of money, 
 and shall have devised the estate 
 so charged to a trustee for the whole 
 of his interest therein, and shall 
 not have expressly provided for the 
 raising of the money to pay such 
 debts, &c. , then the devisee in trust, 
 or any person in whom the estate 
 may have become vested by law- 
 ful devolution may, notwithstand- 
 ing any express trusts declared in 
 the WiU, sell or mortgage the here- 
 ditaments to meet the testator's 
 liabilities (sects. 14, 15). And if a 
 testator creating such a, charge as 
 that mentioned above, has not so de- 
 vised his estate that the whole may 
 
 vest in a trustee or trustees, then'the 
 Act empowers his executors and their 
 representatives to have the same 
 powers as the devisees in trust 
 would have had, if the whole in- 
 terest of the testator had vested in 
 them. A sale under the Act operates 
 only on the legal or equitable in- 
 terest of the testator, and it will 
 be necessary to get in any outstand- 
 ing legal estate in which he is 
 interested (sect. 16). The above 
 sections do not apply to an estate 
 devised in fee or in tail or for the 
 testator's whole interest charged 
 ■with debts, legacies, &c., nor do 
 they affect the power of such de- 
 visee to sell or mortgage which 
 existed before the Act was passed 
 (sect. 18). 
 
OF EXECUTORS AND ADMINISTRATORS. 591 
 
 said, to charge tte property and so increase the original 
 capital employed, but that he was entitled to stand in the Position of the 
 position of the defendant, the husband of the executrix, mortgagee. 
 against the real estate of the deceased comprised in the 
 deeds deposited with him. That is to say, as the defend- 
 ant had a claim on the estate in right of his wife, so to 
 the extent of that claim, if any, by him, at the time of the 
 equitable mortgage, the plaintiff was to occupy his posi- 
 tion. Before, then, a person advances money to an 
 executor, the former should make it his business to under- 
 stand the true position of affairs, and if he lends under 
 circumstances which are sufficient to put him upon inquiry 
 and he neglects to do this, he can be in no better position 
 than are the persons with whom he deals. But as a rule, 
 if a person has a power to sell or mortgage, or generally 
 to raise money, to pay debts, a lender is not bound to 
 inquire what use is to be made of the money, and even if 
 it be misapplied, the estate will be bound ; and as stated 
 by Sir John Leach, M. R., in Watkins v. Cheek, the prin- 
 ciple is applicable alike to personalty and realty. 
 
 We now come to a case where an executor carried on Case where 
 the testator's business — which was, as in the previous ep^tor <:ar- 
 
 _ ^ ned on busi- 
 
 case, one in connection with a colliery — luithout any ness without 
 direction or authority given to him for that purpose by s^*ur°ed*profits. 
 the Will (l). Here, a testator seised and possessed of real 
 and leasehold estate and personalty, after a specific devise 
 to A. his son, devised and bequeathed the residue of his 
 real, and the whole of his personalty, to trustees upon 
 certain trusts, of which one was to pay B., his daughter, 
 an annuity of £200 over and above half the income of the 
 realty and personalty given to the trustees, but that the 
 annuity should not exceed £600. Subject to these trusts 
 and a legacy, he gave all his property to his son, and em- 
 powered his trustees to let him into possession of all the 
 
 (I) WigMvjicJc V. Lord, 6 H. L. ing Lord v. WigUwiek, 4 De G. 
 Gas. 317 ; 26 L. J. Ch. 825 ; affirm- M. & G. 803 ; 23 L. J. Ch. 235. 
 
592 
 
 WILLS OF PERSONAL PROPERTY. 
 
 property upon the condition of his securing the legacy and 
 above annuity. He appointed A. and the two trustees 
 executors, but they disclaimed the trusts and renounced 
 probate, which was accordingly granted to A. At the 
 death of the testator his debts exceeded the amount of his 
 pure personalty. The son entered into possession, acted as 
 sole executor and trustee, but in the former capacity did 
 not, within the year allowed him by the law, realize the 
 whole of the property, and account to his sister — ^who, as 
 we see, had a charge upon the residuary estate — but worked 
 the mine out, that is, to the expiration of the lease, and 
 eventually made it produce a profit of £27,000. The 
 daughter, under these circumstances, filed a bill against 
 A. for an account of the testator's estate, and the questions 
 were, whether he was justified in doing what he had done, 
 whether on discovering the deficiency of personal assets to 
 pay the testator's debts, it was or was not his duty to con- 
 vert the realty into money to meet those debts ; lastly, 
 what was to be done with the capital, and the profits 
 made from it, which A. had employed in carrying on the 
 Duty of exe- business of the colliery. The Lords Justices Knight-Bruce 
 cutor when ^^j Turner, while appearing to admit that the omission to 
 
 he finds . . - 
 
 his testator's sell the mine was not an ^m/prudenGe, nevertheless decided 
 that as between A. and B., A. ought, with all diligence, to 
 have converted the realty after the testator's death, and 
 that the capita] and the profits therefrom must go back to 
 the funds from which it had been diverted, namely, the 
 testator's general personal estate. 
 
 It is here seen that the son, although probably in the 
 position of the original and disclaiming trustees, was yet 
 the testator's appointed executor, and as such ought to 
 have paid his debts, first out of personalty, and that 
 proving insuflScient, th6n out of the realty converted into 
 money; but supposing the trustees to have remained, 
 nothing could have come to their hands qua trustees until 
 What became the testator's liabilities had all been discharged. A., how- 
 made\y™h^ ever, dealt with the property as a trustee before the trust 
 
 executor. 
 
 debts in excess 
 of assets. 
 
OF EXECUTORS AND ADMINISTKATOKS. 593 
 
 arose, made large profits, but these did not result from 
 the trust for the reason just stated, nor did the capital 
 producing them ever belong to the trust. A., however, 
 by placing himself in the position of a trustee was regarded 
 as such for one purpose, namely, that as a trustee he could 
 not make a profit for himself out of the property dealt 
 with by him ; accordingly, the amount of that profit, sub- 
 ject to a reasonable deduction for A.'s expenditure, was 
 held, both by the Lords Justices and the House of Lords, 
 to be part of the general personal estate of the testator. 
 Therefore, although A. ought to have sold the colliery Position of the 
 a year after the testator's death, he was not entitled to ^""^ "' 
 have its value ascertained at that time, and be charged 
 with that sum and interest, because the clear subsequent 
 income from the property formed part of the capital of 
 the testator's personal estate (m). 
 
 Although a farmer is not a trader in the legal sense of a farmer, 
 the word {n), yet a person following this avocation may *^°^fj. °°* * 
 direct his executors to carry on his business of a farmer "lireot lis 
 
 „, T • 1 . 1 / N business to be 
 
 after his death (o). carried on. 
 
 A question sometimes arises not only in matters con- When executor 
 
 nected with this carrying on by executors and adminis- represent^iv'^ 
 
 trators of a deceased person's business, but also under capacity. 
 
 other circumstances, whether, when called upon to bring Criterion for 
 
 an action on a contract, they are to do so in their personal this. °^ 
 or in their representative character. The criterion for 
 determining this point — that is, where the contract was 
 
 (to) "Witt the case just considered transaction amotmted to a loan to 
 
 in the text, may be read that of A. under the above Power, and dis- 
 
 Parker v. Bloxam, 20 Beav. 295. missed the bill of the cestuis qtie 
 
 There an executor employed trust trustent asking for an account. 
 funds in business, and the cestuis («) Sex v. Inhabitants of Whit- 
 
 qtte trustent unsuccessfully claimed nosh, 7 B. & C. 596 ; 32 & 33 Vict. 
 
 a share of the profits made, but the c. 72. Schedule I. (The Bankruptcy 
 
 circumstances of this case were Act, 1869.) 
 
 peculiar. The executors were au- (o) Toplis v. Hurrell, 19 Beav. 
 
 thorized to lend trust moneys to A. 423, where one of three executors 
 
 One of them employed part of such acted, and in taking the accounts 
 
 moneys in his business, and subse- against the others,he was considered 
 
 quently went into partnership with as their agent. 
 A., and the Court held that the q q 
 
594 
 
 WILLS 01" PERSONAL PEOPEETY. 
 
 Executor 
 carrying on 
 business of 
 testator uiider 
 any circum- 
 stances liable 
 . to account for 
 profits as ossete. 
 
 Query. Whe- 
 tber all assets 
 are not now- 
 equitable. 
 
 not solely that of the deceased's — will be found in the 
 joint answers to the following questions! — (1) Was the 
 contract made with the executor or administrator himself, 
 or all the executors, &c., if more than one, qua such ? 
 (2) Is what such persons seek to recover, a portion of the 
 testator's or intestate's assets ? If the contract was made 
 with a sole executor or all the executors, if more than 
 one, qua such, then, provided what is sought to be re- 
 covered be assets of the testator, and only then, the 
 executors or administrators may sue in their representa- 
 tive capacity : So that the two circumstances above- 
 mentioned concurring give them that power, and if 
 both be wanting, they must sue, if at all, in their 
 personal capacity (p). Whether the contract to be 
 sued upon, was made with an executor or administrator, 
 or all the executors and administrators, is a question 
 of more easy solution ; and it is clear that the chief 
 difficulty lies in the ability to say precisely whether the 
 sum to be recovered will be assets or not. We have seen 
 {ante, p. 586), that an executor who carries on the business 
 of a deceased person, under all circumstances, is account- 
 able to those interested in the property for what profits 
 he may make by so doing ; accordingly, such profits are 
 in this case to be deemed assets, and also even where no 
 part of the actual property of the deceased may have been 
 employed in the concern {q). It is apprehended also that 
 
 Cp) See CoweU v. Waits, 6 East, 
 405 ; but read tbe judgt. of Parke 
 B. (Lord Wensleydale) in Jleath v. 
 Chilton, 12 M. & W. 632 ; 13 L. J. 
 Ex. 225, cited with approbation by 
 Blackburn, J. , in Abhptt v. Parfttt, 
 L. R. 6 Q. B. 216 ; 40 L. J. Q. B. 
 115. Of course an executor or 
 administrator must sue in bis repre- 
 sentative character when the cause 
 of action accrues in the deceased's 
 lifetime. If it accrues after his 
 death, the executor, &c., may sub 
 in either capacity, at his option. 
 See 1 "Wms.- Exors. pt. 2, bk. 3, 
 
 ch. 2, 878 ; also 2 Wms. Exors. 
 pt. 5, bk. 1, ch. 1, 1870, and ante, 
 p. 190, et seq. " The rule may now 
 be regarded as firmly established by 
 the later cases, that whenever the 
 money recovered wiU be assets, the 
 executor may sue for it, and declare 
 in his representative character." 
 1 Wms., wt sV'pra, p. 881. It fol- 
 lows that where an executor enters 
 into a contract qua executor, what 
 he recovers upon it must be assets 
 of the deceased. 
 
 (q) See Lord Hai-dwicke's judgt. 
 in GHilett v. Head, 9 Mod. Kep. 459. 
 
OF EXECUTORS AND ADMINISTRATORS. 595 
 
 inasmuch as each of the civil tribunals, which formerly 
 were respectively known as the Courts of Equity and the 
 Superior Courts of Common Law, is now only a branch of 
 one Court of Law in which, however, equitable principles are 
 to have full force, it will not in future matter whether the 
 assets be what are called equitable or those termed legal. 
 Before the Judicature Acts, a person holding a represen- 
 tative position was not empowered to sue in a Court of 
 Law, where what he sought to recover would, though 
 actually assets in the view of equity, were not necessarily 
 so at law. The opinion contained in the above observa- 
 tion is therefore merely conjectural, although the altered 
 conditions of things by reason of the Judicature Acts, 
 seem to warrant its being entertained. 
 
 A very good way of ascertaining whether certain pro- Mode of 
 perty forms assets of a deceased person so as to enable ascertaining 
 the executor or administrator to sue therefor in his repre- sought to be 
 sentative capacity, is to ask the following question : — Did ^''°°^^™'i ^' 
 what is sought to be recovered, or recovered upon, belong 
 to the deceased as his own during his life and down to the 
 time of his death ? If this query can be answered in the 
 affirmative, then the property, &c., will be assets ; 'and if 
 the representative has secured it by his right as such, then 
 the property will form assets in his hands. Next, where Assets "in 
 there is a necessity to sue for the recovery of such pro- ^^'^^^ of „ 
 perty, ask whether it would, if the action were successful, 
 come into the representative's hands solely in consequence 
 of his being the representative of the testator in whom the 
 alleged right was, and would probate duty be payable 
 thereon. If this also can be answered affirmatively, then when action 
 the action Avill be, but if negatively, then it will not be, ™^ ''® }? 
 maintainable — that is, by the executor or administrator as representativo 
 such, although it may be brought by him in his personal °^^^^*'^'^- 
 capacity (r). Let us illustrate the preceding observations 
 
 (r) The above is merely another where it is shown that property- 
 way of putting the description of may also be assets in an executor's 
 assets given in Shepherd's Touch- hands, even where it was never in 
 stone, cited 2 Wms. Exors. pt. 4, the testator ; also (Wife, p. 585. 
 bk. 1, ch. 1, 1656. See also ihid. ■ Q Q 2 
 
596 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Administrator 
 where unable 
 to sue in his 
 representative 
 capacity. 
 
 Season. 
 
 Where executor 
 recovered a 
 debt in his 
 representative 
 character. 
 
 by a case, that of Bolmghrolce v. Kerr (s). This was one 
 where a man and wife, the latter being ad/mi/nistratrix to 
 her father, carried on the deceased's business ostensibly for 
 the benefit of the estate, but as a matter of fact on their 
 own account. Two years after the intestate's death they 
 supplied goods to the defendant, and he failing to pay for 
 them, the administratrix and her husband — ^the latter pur- 
 porting to act in her representative capacity — ^brought an 
 action for the price of the goods sold. It was ruled at 
 the trial by Bramwell, B., that the wife ought not to have 
 been joined as a plaintiff; the learned judge also refused 
 to amend the declaration and directed a nonsuit if). The 
 Court of Exchequer affirmed this ruling and direction, 
 and held that the debt due from the defendant was not 
 assets, and therefore that the wife was not able to sue as 
 administratrix. This decision depended upon whether 
 the parties were carrying on the business for the benefit 
 of the estate or not, and this is obviously a question of 
 fact for the jury at a trial ; if such had been the case there 
 could have been no nonsuit. In all probability the infer- 
 ence of Mr. Justice (now Lord) Blackburn, in Abbott v. 
 Parfitt {supra, n. {p) ), that the administratrix was the only 
 child of the testator, and therefore, though administratrix, 
 had no other duty to perform than that of appropriating 
 the estate, was correct {u). 
 
 In Abbott V. Parfitt, to which allusion has been made, 
 a testator, a baker, gave directions that his business should 
 be continued by his executors after his death. They com- 
 plied with such directions appointing the widow their agent 
 
 (s) L. R. 1 Ex. 222 ; 35 L. J. 
 Ex. 137. 
 
 (t) But where a plaintiff sued not 
 as administratrix of a deceased, 
 but really as administratrix de bonis 
 non, the declaration might and 
 ought to be amended whete the 
 plaintiff purported to be adminis- 
 tratrix proper. Moseky amd Wife 
 V. Mnddl, L. K. 6 Q; B. 338; 
 40 L. J. Q. B. Ill ; post, p. 597. 
 
 (w) The report of this case both 
 in the Law Reports and in the Law 
 Journal Reports, is not very full, 
 but as pointed out by the learned 
 judges in Alhott v. Parfitt, L. R. 
 6 Q. B. 216 ; 40 L. J. Q. B. 115, 
 that in the former reports must, 
 uvAsssBolinglrolce Y.Kerr was meant 
 to be diametrically opposed to prin- 
 ciple and authority, be considered 
 the more correct one of the two. 
 
OF EXECUTORS AND ADMINISTRATORS. 597 
 
 for that purpose. She supplied the defendant, while so 
 carrying on the business, with bread and flour to a certain 
 amount, and as he did not pay for it, the executors brought 
 an action for the price. At the ti;ial it was contended by 
 the defendant that the executors were not entitled to sue 
 in their representative capacity, and this contention pre- 
 vailed, the Deputy Judge who presided directing a non- 
 suit, with leave, however, to move to set that aside and 
 enter a verdict for the executors. The Court of Queen's 
 Bench having granted a rule nisi, subsequently made it 
 absolute on the general ground that an executor may sue 
 in his representative character when that which he sues 
 for will be assets when recovered, and this decision simply 
 terminates the line of authorities where the same clear and 
 just principle has been applied. 
 
 It has been previously intimated that an administra- ^^^^ as to an 
 
 , 1 . „ , . /• 7 administrator 
 
 tor carrying on the busmess or the mtestate wot for the not being able 
 
 benefit of the estate, is unable to sue in his representative *° sue as such 
 • "^ . "^ ^ examiued. 
 
 capacity for contracts entered into after the deceased's 
 
 death in connection with that business. But the rule 
 is otherwise where the administrator is acting for the 
 benefit of the estate, and this may be inferred from circum- 
 stances, as in Moseley v. Rendell {ante, n. (i) ). There, MosehyY. 
 A., a coachbuilder, had been, and was, employed at the 
 time of his death by the defendant, a jobmaster, to do 
 certain work. A. having died intestate, his widow took 
 out administration, and continued until her own death — 
 which took place about three months after that of her 
 husband — ^to perform certain repairs to the defendant's 
 carriages on her late husband's premises, and with his 
 appliances and materials, except as to one shaft. On the 
 widow's decease, A.'s daughter took out administration Administratrix 
 de bonis non to her mother, and, with her husband, sued suing where 
 the defendant for a certain sum for goods sold and de- administratrix 
 
 ° had carried on 
 
 livered, work done, materials provided, &c., after the the intestate's 
 intestate's death. Two questions arose at the trial, first, 
 whether the declaration in which the plaintiff sued as 
 administratrix proper was right or wrong ; second, could 
 
 Eenddl. 
 
598 
 
 WILLS OF PERSONAL PROPERTY. 
 
 it, if wrong, be amended. The learned presiding judge — 
 acting, however, under an eiToneous impression that the 
 plaintiffs had had notice in chambers of the error in the 
 declaration, but had elected to proceed notwithstanding — 
 refused to grant the application which proposed an amend- 
 ment of the declaration to the effect that the plaintiff was 
 administratrix de bonis non, and a verdict was found for 
 the plaintiff. Leave was given to the defendant to move 
 to enter the verdict for him on the grounds that the plaintiff 
 was not proved to have been administratrix of the intestate, 
 that the declaration did not meet the facts proved, and 
 that the causes of action were part of the estate of the 
 administratrix, and did not pass to the administratrix de 
 bonis bon. A rule nisi having been obtained in accord- 
 ance with the leave to move, the Court of Queen's Bench 
 unanimously discharged it, holding that the declaration 
 might and ought to have been amended as proposed. 
 Also that, under the circumstances, the proper infer- 
 ence being that the first administratrix had carried on 
 the business for the benefit of the estate, therefore 
 the money sought to be recovered, would if recovered, 
 have formed part of A.'s assets, the action was rightly 
 Why tie plain- brought by the administratrix c?e ^owis %on. "I think," 
 titied to^sue. ^aid Cockbum, C. J., " there can be no doubt that the 
 female plaintiff, as administratrix de bonis non, is the 
 proper party to sue. True, the promise on which the 
 action is founded was made to the widow ; but although 
 the female plaintiff is not the personal representative of 
 the widow, I hold that she is the person to sue, because 
 the amount sought to be recovered was not due to the 
 widow, in her personal capacity, but as administratrix of 
 the estate of her husband." This statement expressed 
 with the usual clearness and sound sense of the learned 
 Chief Justice, appears to be conclusive on that portion of 
 the case with which it deals. Then Blackburn, J., says : 
 Time an im- — " It has been truly said that in continuing a business, 
 sideration'in time is of great importance, and, indeed, in the present 
 these cases. gg^gg, the goodwill of the business would have been entirely 
 
OF EXECUTORS AND ADMINISTRATORS. 599 
 
 destroyed and lost if the business had been stopped im- 
 mediately on the death of the intestate. It was carried 
 on for a few weeks only on the premises of the husband 
 and with his tools and materials, and with a view of dis- 
 posing of the estate to the best advantage, and was- carried 
 on by the widow, as his representative, and not in her 
 personal capacity. Therefore, if the question had been 
 left to a jury, they ought to have been told to find for the 
 plaintiffs .... As to the other part of the case, whether 
 an amendment should have been made or not .... it 
 seems to me to be precisely the case in which an amend- 
 ment ought not only to be allowed, but to be ordered.'' 
 This judgment was concurred in by Mellor, J., as well as 
 the learned judge, who at the trial had refused the amend- 
 ment under the erroneous impression before mentioned, 
 and as this view had also misled the defendant, the Court 
 discharged the rule without costs. 
 
 As to executors carryiiig on their testator's domestic _ Executors 
 establishTnent after his death, the law, while sanctioning theS^fsM;or's 
 no unnecessary delay, allows them a reasonable time for <>'<»^ff>^ 
 
 . . ,., Ill establishment. 
 
 breaking up and otherwise arranging his household 
 affairs ; and it was held not long since, that two months, 
 under certain circumstances, is not an unreasonable period 
 for such purpose (x). 
 
 We have now to notice a very important matter con- Duty on 
 nected with the office of executor or administrator, that Letos^of Ad- 
 relating to the payment of the duties on probate, Letters ministration, 
 of Administration, legacies, and successions {y). An exe- Successions. 
 cutor or administrator, after intermeddling with a deceased Penalty for 
 
 not taking 
 (x) FUld Y. Peokett (So. Z),i9 £100. (See n. (s) p. 604.) By tlie 
 Beav. 576. same statute (sect. 4), it is enacted 
 (y) It may te stated that under that stamp duty shall be chargeable 
 27 & 28 Vict. i;. 56, s. 5, no stamp in respect of the value of a ship re- 
 duty is chatgeable on any probate gistered in any port of the United 
 or letters of administration where Kingdom, even if such ship shall be 
 the whole estate of a person dying in foreign waters at the time of the 
 after July 26th, 1864 (exolimve of testator's death, in which case she 
 property held by him as trustee, is deemed to have been then at the 
 and not beneficially), shall be sworn port where she is registered, 
 not to, and does not actually exceed 
 
600 
 
 "WILLS OF PEESOKAL PROPERTY. 
 
 probate or 
 administration 
 ■within six 
 months after 
 death of 
 testator, &c. 
 
 Affidavit. 
 
 person's estate, not taking probate or Letters of Adminis- 
 tration within six months from a testator or intestate's 
 decease, or within two months from the termination of an 
 action ^r dispute as to the Will, is liable to pay a penalty 
 of £100, and a further sum of 10 per cent, on the amount 
 of the stamp duty payable on the probate or Letters of 
 Administration of the estate and effects of the deceased (z). 
 The Probate Division of the High Court of Justice cannot 
 grant probate or administration without an affidavit by 
 the person entitled to either, or from some other compe- 
 tent person or persons, stating the value of the deceased 
 person's effects, which are recoverable by the represen- 
 tative as such, .exclusive of what he may have been 
 possessed of as a trustee, but including his leasehold 
 estates of any kind, and without deducting anything on 
 account of debts (a) owing by the deceased. Such person 
 or persons must swear that the whole value of the pro- 
 perty is under a certain integral sum, in order that probate 
 or administration duty may be paid on such sum, ac- 
 cording to the tables set out in the schedules to 55 Geo. 3, 
 c. 184 (6). The affidavit, which is itself exempt from 
 stamp duty, must be forwarded to the Stamp Commis- 
 
 (z) Under 55 G. 3, c. 184, s. 37 
 (Aug. 31, 1815), with wliicli read 
 28 & 29 Vict. c. 104, s. 57. The 
 former statute has heen repealed m 
 part by 32 & 33 Vict. u. 14, s. 12, 
 33 & 34 Yict. c. 99 ; and by 36 & 
 37 Vict. c. 91 (Statute Law Revision 
 Act, 1873), but not in any material 
 part affecting our present subject. 
 
 (a) But see sect. 51, which enacts 
 that where effects of a deceased 
 person are reduced by payment of 
 debts, the difference in the duty 
 may be returned within a given 
 time ; also 5 & 6 Vict. c. 79, s. 23. 
 
 (6) Sect. 38. The Act provides 
 that Quakers may make a solemn 
 affirmation in lieu of an oath, and 
 it is presumed that the spirit of 
 the Evidence Amendment Act, 1870 
 
 (33 & 34 Vict. c. 49), will extend not 
 only to aU other persons but also to 
 statements which before then were 
 required to be made on oath. At 
 the same time, although the Act 
 deals with cases where an oath may 
 be administered by any person 
 authorized by law to do so in taking 
 evidence, yet whether what a repre- 
 sentative declares as to the value of 
 a deceased person's estate is evidence 
 in the ordinary sense of the word is 
 another matter. But by 36 & 37 
 Viet. c. 52, s. 4, an Act to relieve 
 widows and children of intestates 
 leaving small estates. Registrars of 
 County Courts are empowered to 
 administer oaths and take declara- 
 tions and affirmations. 
 
OF EXECUTORS AND ADMINISTKATORS. 601 
 
 sioners — or now, the Commissioners of Inland Revenue (c) 
 — by the Registrars of the Probate Division, who, by 
 neglecting to do so, are liable to a penalty of £50 (d). 
 
 If it should happen that the person making the declara- Where value 
 tion as to the value of the deceased's estate has over- mated '^^ ' 
 estimated it and so paid too much as stamp duty, he may 
 apply to the commissioners within six months of the time 
 of the payment and by delivering a proper inventory and 
 valuation of the effects, and making another affidavit or 
 affirmation, obtain from them the difference between the 
 sum paid and that which was actually due (e). 
 
 If too little duty has been paid under mistake or Under-esti- 
 ignorance, and there has been no intention to commit a ™^*®'^' 
 fraud, the commissioners may, on receiving an affidavit or 
 affirmation as to the true value of the estate, within six 
 months after the true value of the effects has been ascer- 
 tained, cause the probate or Letters of Administration to 
 be duly stamped on payment only of the sum required to 
 make up the duty which ought to have been paid in the 
 first instance, and they may remit the penalty payable by 
 law for stamping deeds after the execution thereof (/). 
 In cases of administration, however, the commissioners are 
 to require the administrator, where he has paid too little 
 duty, before stamping the Letters of Administration, also 
 to give security to the President of the Probate Division 
 of the High Court of Justice (c/). But where full duty 
 
 (c) See 4 & 5 W. 4, c. 60, and tion to evade or postpone the pay- 
 12 & 13 Vict. c. 1. ment of the stamp duty. 
 
 (d) 55 G. 3, c. 184, s. 39. (g) Sect. 42. The security re- 
 (c) Id. sect. 40. quired to be given is the same as 
 (/) Id. sect. 41. The penalty that required of an administrator 
 
 for issuing an improperly stamped who declares the value of the in- 
 prohate was £500 under 5 & 6 W. testate's estate accurately. See 
 & M. c. 21, _ but now by 33 & 34 20 & 21 Vict. c. 77 (Probate Act, 
 Viot. 0. 97, 's. 12, it is £10. This 1867), which repeals certain old 
 may be remitted by the commis- statutes on this subject. See also 
 sioners if they think fit, at any time sect. 81 of the same Act which pro- 
 within twelve months after the first vides for administrators giving bonds 
 execution of any instrument, and to the "Judge of the Court of Pro- 
 there has been no fraudulent inten- bate, " and sect. 82 as to their amount. 
 
602 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Exemptions 
 from Probate 
 Duty. 
 
 Importance of 
 probate, &c., 
 being stamped 
 correctly. 
 
 Probate, &e., 
 not correctly 
 stamped not 
 admissible in 
 evidence. 
 
 Upon what 
 Probate or 
 Administra- 
 tion Duty is 
 payable. 
 
 has not been paid, and this is known' by those who are 
 charged with the payment of such sum, and what is want- 
 ing to make it up be not paid within six months after 
 discovering that it ought to have been paid, the person 
 neglecting to do so will be liable to pay a penalty of £100, 
 and 10 per cent, of the deficient amount QC). 
 
 In Part III. of the Schedule to 55 Geo. 3, c. 184, it is 
 declared that probate of the Will, Letters of Administra- 
 tion, confirmation of testament (i), and eik thereto (_/) of 
 any common seaman, marine, or soldier, who shall be 
 slain or die in the service of the Sovereign, shall be 
 exempt from all stamp duties. 
 
 It is extremely important that probate and Letters 
 of Administration should each bear the correct stamp 
 indicating the sum which has been paid on the value of 
 the deceased person's effects, because the probate and 
 letters, respectively, form the evidence of the right of each 
 to act in his representative character. Supposing then 
 that an executor or administrator is compelled to sue on 
 behalf of the estate, and " his case shows that he sues for 
 a greater value than is covered by the probate or adminis- 
 tration stamp, he cannot recover'' (Ic), and probate or 
 Letters of Administration improperly stamped are not ad- 
 missible in evidence though the document itself is not by 
 reason of this made void (I). 
 
 We may therefore state that upon whatever is recover- 
 
 Meaning of 
 " confirma- 
 tion " and 
 " eik." 
 
 {h) 55 G. 3, c. 18i, s. 43 ; but 
 see 28 & 29 Vict. c. 104, s. 57, 
 whicli gives a summary procedure 
 for recovery of Probate Duty, and 
 provides for tbe waiver of penal- 
 ties. As to whether the Crown 
 may, on a false representation by an 
 executor, &c., of the value of the 
 estate, take the assets of the deceased 
 for payment, see 1 "Wms. Exors. 
 pt. 1, bk. 7, 628. 
 
 (i) A term of Scotch law synony- 
 mous with "probate" in that of 
 England. 
 
 (/) Also a term of Scotch law, 
 meaning the addition to an inven- 
 tory ; in English law something 
 added to assets proved. Paterson's 
 Compendium of Eng. and Sc. Law, 
 504, 522. As to the payment of 
 piize-money of deceased soldiers, 
 see 3 & 4 "W. 4, o. 53. 
 
 (S) 2 Wms. Exors. pt. 5, bk. 1 
 eh. 1, 1891, citing Munt v. Stevens, 
 3 Taunt. 113. 
 
 {1} 1 "Wms. Exors. pt. 1, bk. 7, 
 614. 
 
OF EiJtECUTOES AND ADMINISTRATORS. 60S 
 
 able by an executor or administrator, by virtue of his pro- 
 bate or Letters of Administration, for the deceased person's 
 estate, probate or administration duty is payable. A Where sums 
 question may sometimes arise, where the deceased person necIaseV" 
 has not been in actual possession of certain sums of person. 
 money, but those sums have been owing to him at his 
 decease, whether duty is payable on them in the circum- 
 stances under which that question may appear. The fol- 
 lowing case (m) furnishes an instance of this as to Probate 
 duty, and the case also one of authority on the subject. 
 A testator, by a valid contract in writing, agreed to sell a ^ffi^^j.^ tj^g 
 freehold estate to B. At the time of the contract a sum deceased had 
 of money was paid as a deposit into the hands of a stake- a contract to 
 
 holder. After the testator's death, the contract was sell real 
 
 estate, and 
 specifically performed, and the whole purchase-money was the contract 
 
 paid to the defendant as his executor. Query — Was the t^^d"°th' 
 executor liable to pay Probate Duty on the money so complete, 
 coming into his hands? The Court of Exchequer held 
 that he was not (n), but the House of Lords decided that 
 Probate Duty is payable in respect of the purchase-money 
 of real estate on a contract for its sale, made before, 
 but completed after the testator's death. Lord Camp- 
 bell, C, said that the purchase-money having been 
 actually paid to the executor, it was wholly immaterial in 
 case of its non-payment, before what tribunal the remedy 
 for that might have been pursued, because probate being Prohate 
 granted of all the effects of a testator, within the juris- ^™tsin 
 diction of the Ordinary (o), which the executor is entitled England, 
 to receive, and this money having been paid to the exe- 
 cutor as such in the present case, duty was, therefore, 
 payable upon it. 
 
 Again, where realty was sold under the trusts of a Kealtysold 
 Will, and the proceeds paid to the legal representative of J^stsoflwiu 
 
 a person interested in it, it was held that Probate Duty and proceeds 
 
 paid to a 
 
 (wi) Attorney-Gemml v. Srun- (o) Now represented by the Presi- person's re- 
 
 ning, 8 H. L. Gas. 243 ; 30 L, J. dent of the Probate, Divorce, and presentative. 
 
 Ex. 379. Admiralty Division of the High 
 
 (n) 28 L. J. Ex. 125. Court of Justice. 
 
604 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Probate Duty 
 
 ^ not payable on 
 
 assets abroad. 
 
 Where assets 
 are im transitu 
 from a foreign 
 country to 
 
 as where bills 
 of exchange 
 were on their 
 way from 
 India. 
 
 Amount of 
 duty payable 
 on probates 
 and adminis- 
 trations cum 
 teataviento 
 annexo is the 
 same. 
 
 was payable upon the sum realised by the sale, that 
 being part of the deceased's estate and effects (p). 
 
 Probate or administration Duty is payable on assets 
 which are in England at the time of the death of the 
 deceased {q), but not such as are situated abroad, or 
 are incapable of being dealt with here, even though 
 they might be recoverable there by virtue of the probate, 
 &c. If, however, the property be neither in England nor 
 in a foreign country, but in transitu, as in the case of a 
 bill of exchange being on its way to England from India, 
 and duly comes into the hands of the executor, then it 
 appears Probate Duty will be payable on the amount. 
 Thus, where bills of exchange were remitted by a testator 
 from India to England, and he died before they reached 
 their destination, but were duly paid to his executor at 
 maturity, the Court of Exchequer held the proceeds liable 
 to duty if). 
 
 The same amount of duty is payable both on probates 
 and on Letters of Administration when the latter are 
 accompanied by the informal Will of the testator ; but in 
 cases where simple administration issues, the duty is in 
 general about half as much again as on the other, as will 
 be seen from the following table : — 
 
 In Probate, or 
 administra- 
 tion, with Will 
 annexed, when 
 the value of 
 the effects is 
 
 Of the value of 
 
 Duty payable on Probates and Administrations. 
 
 
 
 
 
 
 
 
 Simple 
 
 
 
 
 
 
 
 Administration. 
 
 
 
 
 
 £ 
 
 s. 
 
 d. 
 
 £ ». d. 
 
 ER £20 and under £50 the 
 
 sum 
 
 payable 
 
 is 
 
 
 
 
 
 10 
 
 60 
 
 100 (s) 
 
 
 
 
 
 
 
 
 
 10 
 
 100 ' , 
 
 200 
 
 
 
 2 
 
 
 
 
 
 3 
 
 200 
 
 300 
 
 
 
 5 
 
 
 
 
 
 8 
 
 300 
 
 450 
 
 
 
 8 
 
 
 
 
 
 11 
 
 450 
 
 600 
 
 
 
 11 
 
 
 
 
 
 15 
 
 600 
 
 800 
 
 
 
 15 
 
 
 
 
 
 22 
 
 800 
 
 1000 
 
 
 
 22 
 
 
 
 
 
 30 
 
 (p) AtlorneySeiieral v. Lomas, 
 L. R. 9 Ex. 29 ; 43 L. J. Ex. 32. 
 
 (g) Attomey-Oeneral y. Bouwens, 
 4 M. & W. 190, 19; 7 L. J. Ex. 303. 
 
 (r) AUorney-Qmeral v. Pratt 
 
 L. R. 9 Ex. 140 ; 43 L. J. Ex. 
 108. 
 
 (s) See note (y) at p. 599, and 
 36 & 37 Vict. c. 52, extended by 
 38 & 39 Vict. c. 27. 
 
OF EXECUTOES AND ADMINISTRATORS. 
 
 605 
 
 DXITT PAYABLE ON PkOBATES AND AdMINISTEATIONS — COrhtirwM. 
 
 
 
 
 
 
 
 
 
 Simple 
 
 
 
 
 
 
 
 
 
 Administration. 
 
 
 
 
 
 
 £ 
 
 s. 
 
 d. 
 
 £ «. d. 
 
 JIOOO and under £1500 the 
 
 sum 
 
 payable is 30 
 
 
 
 ON 
 
 
 1500 
 
 
 2000 
 
 ,, 
 
 
 40 
 
 
 
 
 
 
 2000 
 
 
 3000 
 
 ,, 
 
 
 50 
 
 
 
 
 
 
 3000 
 
 
 4000 
 
 ,, 
 
 
 60 
 
 
 
 
 
 
 4000 
 
 
 5000 
 
 ,, 
 
 
 80 
 
 
 
 
 
 
 5000 
 
 
 6000 
 
 ,, 
 
 
 100 
 
 
 
 
 
 
 6000 
 
 
 7000 
 
 ,, 
 
 
 120 
 
 
 
 
 
 
 7000 
 
 
 8000 
 
 ,, 
 
 
 140 
 
 
 
 
 
 Half as much 
 
 8000 
 
 9000 
 
 10,000 
 
 
 9000 
 10,000 
 12,000 
 
 
 
 160 
 180 
 200 
 
 
 
 
 
 
 
 
 
 again as on 
 
 1 the Probate and 
 
 Adminiatratiou 
 
 •with Will. 
 
 12,000 
 
 
 14,000 
 
 ,, 
 
 
 220 
 
 
 
 
 
 
 14,000 
 
 
 16,000 
 
 )» 
 
 
 250 
 
 
 
 
 
 
 16,000 
 
 
 18,000 
 
 ,, 
 
 
 280 
 
 
 
 
 
 
 18,000 
 
 
 20,000 
 
 ,, 
 
 
 310 
 
 
 
 
 
 
 20,000 
 
 
 25,000 
 
 ,5 
 
 
 350 
 
 
 
 
 
 
 25,000 
 
 
 30,000 
 
 ,, 
 
 
 400 
 
 
 
 
 
 
 30,000 
 
 
 35,000 
 
 „ 
 
 
 450 
 
 
 
 oy 
 
 
 35,000 
 
 
 40,000 
 
 J> 
 
 
 525 
 
 
 
 
 
 785 
 
 40,000 
 
 
 45,000 
 
 , J 
 
 
 600 
 
 
 
 
 
 900 
 
 45,000 
 
 
 50,000 
 
 ,, 
 
 
 675 
 
 
 
 
 
 1010 
 
 50,000 
 
 
 60,000 
 
 J, 
 
 
 750 
 
 
 
 
 
 1125 
 
 60,000 
 
 
 70,000 
 
 ,, 
 
 
 900 
 
 
 
 0^ 
 
 
 ■70,000 
 
 
 80,000 
 
 ,, 
 
 
 1050 
 
 
 
 
 
 
 80,000 
 
 
 90,000 
 
 J, 
 
 
 1200 
 
 
 
 
 
 
 90,000 
 
 
 100,000 
 
 ,, 
 
 
 1350 
 
 
 
 
 
 
 100,000 
 
 
 120,000 
 
 », 
 
 
 1500 
 
 
 
 
 
 
 120,000 
 
 
 140,000 
 
 ,, 
 
 
 1800 
 
 
 
 
 
 
 140,000 
 
 
 160,000 
 
 ,, 
 
 
 2100 
 
 
 
 
 
 
 160,000 
 
 
 180,000 
 
 », 
 
 
 2400 
 
 
 
 
 
 Half as much 
 
 180,000 
 
 
 200,000 
 
 ), 
 
 
 2700 
 
 
 
 
 
 again as on 
 
 200,000 
 
 
 250,000 
 
 >, 
 
 ,, 
 
 3000 
 
 
 
 
 
 i the Probate and 
 
 250,000 
 
 
 300,000 
 
 ', 
 
 ,» 
 
 3750 
 
 
 
 
 
 Administration 
 
 300,000 
 
 
 350,000 
 
 >, 
 
 
 4500 
 
 
 
 
 
 with Will. 
 
 350,000 
 
 
 400,000 
 
 ,, 
 
 ,, 
 
 5250 
 
 
 
 
 
 
 400,000 
 
 
 500,000 
 
 ,f 
 
 
 6000 
 
 
 
 
 
 
 500,000 
 
 
 600,000 
 
 ,» 
 
 
 7500 
 
 
 
 
 
 
 600,000 
 
 
 700,000 
 
 ,, 
 
 
 9000 
 
 
 
 
 
 
 700,000 
 
 
 800,000 
 
 ,, 
 
 
 10,500 
 
 
 
 
 
 
 800,000 
 
 
 900,000 
 
 »> 
 
 
 12,000 
 
 
 
 
 
 
 900,000 
 
 
 1,000,000 
 
 ,) 
 
 
 13,500 
 
 
 
 oy 
 
 
 1,000,000 
 
 
 ■ 
 
 ,, 
 
 
 15,000 
 
 
 
 
 
 22,500 
 
 Wlen the sum is over a million, there is payable for every £100,000 
 of the value and any fractional part of £100,000, £1500 for Pro- 
 bates and £2250 for Administrations (*). 
 
 (0 22 & 23 Vict. c. 36, s. 1. 
 
WILLS OF PERSONAL PROPERTY. 
 
 Probate Daty 
 on '* confirma- 
 tions," &a. 
 
 Indian 
 Government 
 promissory 
 notes included 
 I in valuation 
 for probate. 
 
 Bona 
 notabUia. 
 
 Duty on 
 legacies and 
 successions. 
 
 These sums payable on probates are due also upon con- 
 firmations of testament testamentary, or eik thereto (u), 
 to be expeded, that is sued out, in any Commissary Court 
 in Scotland, or upon inventories to be exhibited and 
 recorded in any Commissary Court in Scotland {v), of 
 the estate and effects of any person who has left any 
 testament or testamentary disposition of his or her 
 personal or movable estate and effects. In estimating 
 the value of personalty for the purpose of ascertaining , 
 what probate duty is payable thereon, Indian Government 
 promissory notes, and certificates issued or stock created 
 in lieu thereof, are deemed to be personal assets and bona 
 notdbiUa (x) of the deceased person and must be included. 
 Probate and Letters of Administration, in England, or con- 
 firmation granted in Scotland of these, and sealed with the 
 seal of the Probate Division here, under the provisions 
 of the " Confirmation and Probate Act, 1858 " (v), will be 
 valid to constitute the persons named therein the legal 
 personal representatives of the deceased in regard to such 
 notes, &c., as aforesaid (y). But as we have seen, the 
 estimate is not to include what the deceased died pos- 
 sessed of or entitled to as a trustee for any other person, 
 and not beneficially. 
 
 Having thus hastily glanced at Probate Duty, we now 
 come to notice the duty payable on legacies and successions 
 to property, and this subject is referred to by the various 
 statutes mentioned below (z), but mainly by those which 
 
 (m) Schedule to 55 G. 3, c. 184, 
 pt. 3 ; see ante,, p. 602, n. (i) {j), 
 as to " confirmation " and " eik." 
 
 (v) Tlie tribunal for Probate and 
 Divorce cases. Paterson's Comp. 
 Eng. & Sc. Law, 501. See 21 & 
 22 Vict. c. 56, " Confirmation and 
 Probate Act, 1858," as to tMs 
 Court ; also sect, 15 as to what 
 the inventory shall include. , As to 
 Probates and Letters of Administra- 
 tion granted in Ireland, see 22 & 
 
 23 Vict. c. 31, "Court of Probate 
 Act (Ireland), 1859." 
 
 {x) Goods of the value of £5 and 
 upwards ; but in the diocese of Lon- 
 don, £10 by composition ; 4 Burn's 
 Ecc. Law, 293, with which read 
 1 Wms. Exors. pt. 1, bk. 4, c. 1, 
 § 1, 289, et seg. But see, however, 
 Hanson on the Probate, Legacy, 
 and Succession Duties, 146-165. 
 
 (y) 23 & 24 Vict. u. 5. 
 
 {z) *36 G. 3, c. 62 (Repealed in 
 
OF EXECUTORS AND ADMINISTEATOES. 607 
 
 are marked with an asterisk. It is not possible or neces- 
 sary in a book like the present to give anything approach- 
 ing an examination of these duties, the subject being one 
 of intricacy and magnitude (a), but we may, however, 
 indicate to the reader some of the principles and the rules 
 which the law furnishes with regard to these duties on 
 legacies and successions. 
 
 We have already, in previous portions of this work, 
 incidentally referred to the Act of 1853, when speaking of 
 personal property,; accordingly, we need not repeat what 
 is there stated (b). 
 
 The first Act of Parliament which imposed Stamp When Stamp 
 Duties upon the people of this country was the 5 & 6 ?^pj,ged in 
 W. & M. c. 21, passed in 1694, and was of a temporary England, 
 character — having been introduced with a view to raise 
 money for carrying on the war against France. The 
 power given by the statute was, however,, afterwards re- 
 newed and ultimately was made perpetual by 1 Geo. 1, 
 c. 12. Legacy Duty, although included in the Stamp Tax on legacies 
 Duties (c) is not really a stamp tax at all, but it was so considerer^"^ 
 originally by the statutes which originally imposed it (d), Stamp Duties, 
 
 though not 
 
 part by the Statute Law Eevision Succession Duties, a work which is actually such. 
 
 Act, 1871 (34 & 35 Vict. c. 16) ; considered the best authority on 
 
 45 G. 3, 0. 28 (Kep. in part by this subject. 
 
 The Stat. Law Eev. Act, 1872 (6) At pp. 49 and 50, with regard 
 (35 & 36 Vict. c. 63) ; *55 G. 3, to Legacy Duty payable where 
 c. 184 (Kep. as to a part with realty is to be converted in persou- 
 which we are not concerned, by alty ; at p. 54 as to the meaning of 
 The Stat. Law Eev. Act, ,1873, " Property " in the Succession Duty 
 36 & 37 Vict. c. 91) ; *16 & 17 Vict. Act, 1853 ; at p. 69 as to the modi- 
 c. 51, "The Succession Duty Act, fication of the technical meaning of 
 1853," which came into operation "succession" — where by mistake 
 on May 19th, 1853, known also as the date of the Succession Duty 
 Gladstone's Act. Acts relating to Act is stated to be 1854 instead of 
 the mode of coUeding or recovering 1853 ; and at p. 137 as to lease- 
 Legacy Duty, are 24 & 25 Vict, holds being realty for the purposes 
 c. 92; 28 & 29 Vict. c. 104; 31 & of that Act. 
 32 Vict. c. 124. (c) See 16 & 17 Vict. c. 51, s. 9, 
 
 {a) As may be seen from the (The Succession Duty Act, 1853). 
 treatise on The Probate, Legacy, {d} The earliest of these was 
 
 and Succession Duty Acts, by Mr. 20 G. 3, c. 28, passed in 1780 
 
 Hanson, Comptroller of Legacy and (Eepoaled in part by 36 G. 3, c. 62, 
 
608 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Original nature 
 of the Legacy 
 Duty. 
 
 Legacies 
 specific, 
 pecuniary or 
 of any other 
 description, 
 are liable to 
 duty. 
 
 Kesidue liable 
 after payment 
 of debts, 
 legacies, &c. 
 
 Kecipient of 
 share of 
 
 because the duty was chargeable, not upon the legacy 
 itself, but upon the receipt or discharge given by the 
 legatee for the same, and where this could not be given 
 then no duty was payable at all. Of course to allege this 
 inability was a very convenient matter, hence the revenue 
 very often suffered, and at last by the statute, 36 Geo. 3, 
 c. 52, known as the Legacy Duty Act, and which was 
 passed under the supervision of Lord Eldon (e), the duty 
 was made payable on the legacy itself This Act, with 
 some others, which we have before mentioned (/), is the 
 governing authority at the present dayin matters relating to 
 the payment, &c., of the tax upon legacies. For the amount 
 which is payable as duty, and also as to the value of the 
 property chargeable therewith, we must consult Part III. 
 of the schedule to 55 Geo. 3, c. 184, which increased the 
 sum payable under 36 Geo. 3, c. 52. This schedule deals 
 first with cases where a testator or intestate died before 
 April 5th, 1805, and secondly, with those where the death 
 of such person took place after that date. The schedule 
 also enumerates the precise property which shall be sub- 
 ject to duty, namely, every legacy, specific or pecuniary, 
 or of any other description of the amount of £20 or up- 
 wards, given by any testamentary instrument, either out 
 of personalty or out of realty by sale, mortgage, &c. The 
 duty is also chargeable upon residue, or a share of residue 
 of the value of £20 or more, whether this be given to one 
 or several persons, but not until the debts, legacies, and 
 other charges have been paid, and it matters not whether 
 the residue accrued by force of a WUl, or by reason of 
 total or partial intestacy, or whether it was originally 
 personalty, or was such in consequence of realty directed 
 to be sold, mortgaged, &c. If a person dies wholly intes- 
 
 s. 1 ; and as to the rest, by 6 & 7 
 W. 4, c. 76, s. 32) ; followed by 
 23 G. 3, c. 58 (Repealed by the 
 Stat. Law Rev. Act, 1861), and 
 29 G. 3, c. 51 (Repealed in part by 
 
 36 G. 3, c. 52, s. 1, and the Stat. 
 Law Eev. Act, 1861). 
 
 (e) Then Sir John Scott, A.-G. 
 
 \f) Ante, n. (s), p. 606. 
 
OF EXECUTORS AND ADMINISTEATOfiS. 609 
 
 tate he cannot, of course, leave a Uqacy, but it will be P^Pf^y "'i^^' 
 
 ' ' CI c intestaoy pays 
 
 seen that the schedule, when stating what Duty shall be legacy duty. 
 paid by the recipient of a benefit by reason of another 
 person's death, uses the expression — " or have devolved 
 to," thereby including that species of acquisition which 
 the legislature in 1853 more amply provided for. 
 
 By sect. 2 of the Succession Duty Act, 1853, it is What are 
 enacted that certain dispositions and devolutions shall aJfldevohT- 
 confer successions, and these are there stated to be : — *'o°s under 
 
 Every past or future disposition of property by reason puty Act, 
 whereof any person has or shall become beneficially en- ^^^^• 
 titled to any property or the income thereof, upon the 
 death of any person dying after the time appointed for 
 the commencement of this Act ig), either immediately or 
 after any interval, and either originally or by way of sub- 
 stitutive limitation, and every devolution by law of any 
 beneficial interest in property, or the income thereof, 
 upon the death of any person dying after the time ap- 
 pointed for the commencement of this Act, to any other 
 person, in possession or expectancy, shall be deemed to have 
 conferred or to confer on the person entitled by reason of 
 any such disposition or devolution a " succession ; " and 
 the term " successor " shall denote the person so entitled ; 
 and the term " predecessor " shall denote the settlor, dis- 
 poner, testator, obligor, ancestor, or other person from whom 
 the interest of the successor is or shall be devised (h). 
 
 The Succession Duty Act, 1853, embraces both realty Sweeping 
 and personalty, and applies to the whole of the United ttr^tuts. 
 Kingdom, but not to any country beyond these realms. 
 The general scope of the statute seems to be to define 
 what succession means for the purpose of imposing a tax 
 thereon, and to supplement the operation of the Legacy 
 
 (gf) By sect. 54, on May 19tli, Per LordWesttary inyAe^ftormej/'- 
 lSSS. General v. Mttledale, L. K. 5 E. & 
 
 (h) "The true 'successor,' in the I. App. 290; 40 L. J. Ex. 241, 
 
 sense of the individual liable to pay affirming the Com-t of Exchequer, 
 
 the duty, is the person entitled L. R 5 Ex. 275 ; 39 L. J. Ex. 
 
 upon the expiration, by death or a07. 
 otherwise, of the particular estate." % k 
 
6^0 WILLS OF PERSONAL PKOPEETY. 
 
 Duty Acts ; in fact, as said arguendo by the counsel for the 
 
 Crown in The Attorney-General v. Fitzjohn (i), to meet 
 
 the " numerous cases not caught by the net of the Legacy 
 
 Legacy Duty Duty Acts " (Ic). These were not applicable to real 
 Aorsdidnot "' ^ '' ^ . . ^\ , 
 
 apply to realty, property except where its conversion into personalty 
 
 took place under some imperative trust, or direction to 
 that effect, so that where this conversion was performed 
 at discretion for the benefit of the parties interested or 
 for purposes of convenience, the claim of the Crown 
 did not arise {I). Again, if personal property had been 
 disposed of by a pers6n by deed inter vivos, the 
 Legacy Duty was not chargeable on such property ; but 
 this is otherwise by the Succession Duty Act, for as we 
 have seen, its 2nd section embraces every mode of dis- 
 position of any species of property besides that of a testa- 
 mentary character only. It was stated by Lord Justice 
 Turner in In re Wallop's Trusts (m), that " this Act was 
 clearly intended to extend to cases which can in no way 
 be affected by the rule that mohilia sequuntur personam, 
 and . . . I adhere to our determination in the case of 
 Re Lovelace's Settlement (n), and am of opinion that by 
 the 2nd section of the Act, the legatees of persons domi- 
 ciled (o), out of Great Britain, and the appointees by Will 
 of the donees of Powers so domiciled, were intended to be 
 made subject to the payment of the Duty." But this ob- 
 servation is applicable only to the Succession Duty and to 
 cases of testamentary appointments, and not to gifts under 
 Domicile the instruments which are purely and simply Wills. The 
 test of liability domicile of a person leaving a legacy was always — or at any 
 
 pay Duty. 
 
 (i) 2 H. & N. 465 ; 27 L. J. Ex. 79. (m) 1 De G. J. & S. 656 ; 33 L. J. 
 
 (h) Not, however, to make per- Ch. 351. 
 
 soTud property liable to Succession (m) 4 De G. & J. 340 ; 28 L. J. 
 
 Duty when it was not liable under Ch. 489. From this case we may 
 
 the Legacy Duty Acts, but as stated perceive that property not liable to 
 
 in the text to put dispositions by Legacy Duty, may yet be liable to 
 
 deed inter vims on the same foot- Succession Duty. But s^e post, 621. 
 
 ing as those made by Will. (o) As to domicile, see ante, 
 
 (I) The Admcate-Generaly . Smith, p. 233, et seq. 
 1 Maoq. H. L. Cas. 760. 
 
OF EXECUTOES AND ADMINISTRATORS. 611 
 
 rate since the case of The Attorney-General v. Jackson (p) 
 — has been considered the test of the liability of his personal 
 estate to pay Legacy Duty, and the same rule is observed 
 as to the Succession Duty Act, 1853. Accordingly, where 
 a testator domiciled in France, died there, leaving pure 
 personalty situated in England, it was held by Lord 
 Cranworth, C, that as no Legacy Duty was payable 
 thereon, so it was not chargeable with Succession Duty {q). Therefore if A., 
 The principle, however, that the domicile of a testator, fg^^^fj*^^ j„ 
 and not the locality of his property, is the criterion for de- England and 
 termining the liability thereof to pay Legacy Duty, applies pTOpm-ty^'^^™* 
 only where the property is situate within these realms. ^^'^^> '* '?^ 
 For if a man domiciled in the United Kingdom dies and 
 leaves personal property which exists out of this country, 
 those who take it cannot be compelled to pay Legacy 
 Duty'(r). The rules mobilia sequuntur personam, and 
 that wherever the owner of personalty is domiciled, there 
 his personal property is supposed to be situated, hold 
 good in fact only where the property and the doTnicile 
 of the owner are here. It may possibly occur to the 
 reader to propose a case of this kind : — Suppose A., q^^ j.j,g q^j^. 
 a Frenchman, domiciled in England, possesses a sum of missioners of 
 money invested, say, in the French Rentes, leaves a Will Revenue levy 
 giving it all to B., who is a Frenchman residing in, and tj^^ Legacy 
 
 ... . o J Duty on pro- 
 
 domiciled in France, and B. is the sole executor of the Will, perty situate 
 In the event of B. declining to pay Legacy Duty, could *''™*'^ ■ 
 the Commissioners of Inland Eevenue compel B. to pay ? 
 Here we have property situated abroad— a.u immaterial Property 
 circumstance — and the person who has to administer it *^™^ and 
 
 person to ad- 
 
 resident abroad also, and as stated by the Lord Chancellor minister it 
 in the Attorney -General v. Campbell (s), "you cannot *-*'«'^« ^'^o- 
 claim duties leviable under English Acts of Parliament leviabkoa 
 
 property 
 13 Sim. 153 ; The Attormy-General abroad ; 
 V. Napier, 6 Ex. Rep. 217 ; 20 L. 
 J. Ex. 173, and see Hanson on The 
 Probate, Legacy, and Succession 
 Duties, 3rd ed., 68, and as to Domi- 
 cile in cases of succession, 222, 223. 
 (s) Post, n. (y). 
 
 E K a 
 
 (p) 2 CI. & 
 
 F. 48; 
 
 but see 
 
 Thomson v. The Advocate General, 
 
 12 CI. & F. 1. 
 
 
 
 {q) Wallace v 
 
 . The 
 
 Attomey- 
 
 General, L. R. 1 
 
 Ch. 1 
 
 ; 35 L. J. 
 
 Ch. 124. 
 
 
 
 (r) Thomson v 
 
 . The 
 
 Advocate- 
 
 General, 12 CI. 
 
 & F. 
 
 1 ; S. C. 
 
612 
 
 WILLS OF PERSONAL PROPERTY. 
 
 but it is if the 
 property be 
 brought to this 
 country. 
 
 Domiciled 
 Englishman 
 leaving pro- 
 perty in foreign 
 country, and 
 here ; 
 
 and appoints 
 one executor 
 for each. 
 
 Foreign pro- 
 perty exempt 
 from Duty. 
 
 Duty charge- 
 able only on 
 the English 
 property. 
 
 Where legatees 
 of foreign pro- 
 perty reside 
 here they must 
 pay Duty. 
 
 Person domi- 
 ciled abroad 
 directing his 
 money to be 
 invested in 
 English 
 securities. 
 
 Two cases on 
 this subject. 
 
 when you would have to pursue him before a foreign 
 tribunal." But yet after an administration has been 
 carried out, if the residue be brought here and invested 
 upon trust, it becomes, as the above case will show, British 
 property upon which Duty is chargeable (f). 
 
 It not unfrequently happens that an Englishman domi- 
 ciled in England, leaving personal property in some foreign 
 country, say India or Australia, and also personal property 
 situated here, appoints an English executor in respect of 
 his English property, and an executor in India or Australia 
 in respect of the property there. Under such circum- 
 stances, no means exist for compelling the foreign executor 
 to pay the Legacy Duty on the foreign property which 
 he administers abroad, and the English executor is only 
 liable to pay the Legacy Duty on the property which he 
 administers here. If, however, the legatees of the foreign 
 property reside in this country and the property is re- 
 mitted to them here by the foreign executor without 
 accounting for the Legacy Duty, it is usual to apply to the 
 legatees for payment of it, because, under such circum- 
 stances, the duty is made by the Act a debt due from 
 them. But this, it is seen, is where the testator died 
 domiciled here, and we repeat that domicile is the criterion 
 of liability in all cases (u). 
 
 It may possibly happen that a person domiciled abroad 
 may, from certain considerations, direct his residuary 
 personal estate to be invested in English Government 
 securities, and there are two rather recent cases of this 
 kind, from the judgments of which may be acquired some 
 useful information on the present subject. The first is 
 Re Badart's Trusts {x), decided by V.-C. Malins, in 1870, 
 and the second is The Attorney-General v. Campbell (y), 
 decided in 1872, in the House of Lords, and which dis- 
 
 (i) See the concluding portion of 
 Lord Westbury's judgt. in the above 
 case. 
 
 (u) The Attorney-General Y. Jack- 
 son, 8 Bligh, (N. S. ) 51 ; also sub 
 
 worn. The Attorney-GeneralY. Forbes, 
 2 CI. & F. 48. 
 
 (x) L. E. 10 Eij. 288 ; 39 L. J. 
 Ch. 645. 
 
 (V) L. E. 5 E. & L App. 624 ; 
 
OF EXECUTORS AND ADMINISTRATORS. 618 
 
 tinctly supports the doctrine of the former case. Re 
 Badart's Trusts was this : — Mr. Badart, the testator, was Re Badart's 
 a Belgian by birth, and about ten years before his death, ^™*''' 
 took up his residence in London, -and there amassed a 
 large fortune. He made his Will in England, in the 
 English language, and he appointed English executors. 
 This Will contained a direction to invest a certain sum in 
 Consols, in the names of the executors, and the dividends 
 arising from such sum were to be paid to a tenant for life; 
 with remainders to his nephews and nieces, who were 
 foreigners resident, and domiciled in, Belgium. The 
 tenant for life having died, the Crown claimed Succession 
 Duty upon the interest devolving to the nephews and 
 nieces. They resisted, and the executors paid into Court, 
 under the Trustee Relief Acts, the sum claimed by the 
 Crown. The nephews,, &c., then presented a petition for 
 the payment of this fund to them (z), but V.-C. Malins 
 decided that the Crown was entitled to it. The Vice- 
 Chancellor admitted the gift in the case to be a 
 legacy, and that it would have been assessable under 
 36 Geo. 3, as a legacy, but, he said, "it is a legacy to 
 which there is a succession," and therefore held it liable to 
 pay the Succession Duty. It will be seen that the testator, where a tes- 
 although his domicile of origin was assumed to be Belgian, tator, though 
 was yet virtually an Englishman, and therefore, as pointed abroad, was 
 out by the learned judge, in a very different position from P'^*<''."=^'>y ^^ 
 
 Englishman. 
 
 41 L. J. Ch. 611, reversing Lord in consequence of the exercise of 
 
 Romilly's decision in the same case, some special function of its own. 
 
 sub nom. Oallwnam v. Gamphell, Before the Judicature Acts, the 
 
 L. R. 11 Eq. 378 ; 40 L. J. Ch. Court of Exchequer was the more 
 
 195. suitable forum for the determination 
 
 (a) The trust, together with the of all such cases, because the ques- 
 
 action of the trustees, here formed tion always involved concerned the 
 
 the fonndation of the jurisdiction of Revenue. And now, the Exchequer 
 
 the Court of Chancery to determine Division of the H. C. J. is the 
 
 the question of liability to pay proper branch of the supreme tri- 
 
 Legacy or Succession Duty, and in bunal for the determination of 
 
 all cases where that Court adjudi- similar matters. Judicature Act, 
 
 cated upon these questions, it was 1873, sect. 34. 
 
614 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Property not 
 liable to 
 Legacy Duty, 
 may yet be 
 liable to Suc- 
 cession Duty. 
 
 a foreigner who accidentally happens to be present here, 
 and makes his Will during the period of a short stay, for 
 in that case Succession Duty would not be chargeable, be- 
 cause his foreign domicile would still be unchanged. Why, 
 then, did V.-C. Malins, while admitting Mr. Badart's 
 domicile of origin to be foreign, for the purpose of deciding 
 the question of actual succession to his property, decide 
 that his property was liable to Succession Duty ? The 
 truth is, the case is one of some peculiarity, for, as before 
 stated, the testator lived here, traded here, made an 
 English Will, appointed English executors, and lastly 
 created an English trust. The question of domicile is a 
 matter of fact, and in order that we may not run a risk 
 of introducing confusion into cases of this class where 
 no feature appears to indicate the circumstance that a 
 foreigner and his property are concerned, we shoTild 
 assume or even pronounce his domicile to be English 
 and not foreign, in which case, as Legacy Duty is de- 
 pendent upon a person's domicile, and Succession Duty 
 is so too, one or the other will be payable (a). In the 
 first case cited below. Chief Baron Pollock held that 
 a Frenchman who had resided in England for nearly 
 thirty years, was domiciled in France, therefore, that his 
 property was not chargeable with Legacy Duty, and Baron 
 Bramwell held, hesitatingly (6), that his personalty was 
 liable to Succession Duty. The other members of the 
 Court, Barons Martin and Channell, held that the testator 
 was domiciled in France though resident here, and that 
 Succession Duty was chargeable upon his property, though 
 Legacy Duty was not. 
 
 (a) In re CapdevUlle, 2 H. & 0. 
 985 ; 33 L. J. Ex. 306 ; but see 
 Wallace v. The Attorney-Oeneral, 
 cmte, n. (q). These cases and Re 
 Smith's Trusts, 12 W. R. 933, were 
 cited by V. -C. Malins in support of 
 his views in lie Badart's Trusts. 
 
 (i) His lordship referred, we pre- 
 Buiue, to that portion of Lord 
 
 Justice Turner's Judgment in Re 
 Wallop's Trusts, which we have 
 cited, ante, at p. 610, and remarked 
 that the Lord Justice Knight- Bruce 
 did not heartily concur in all the 
 remarks of his coadjutor. We have 
 seen how that particular observa- 
 tion of Lord Justice Turner's is to be 
 qualified. 
 
OF EXECUTORS AND ADMINISTRATORS. 615 
 
 The case of The Attorney-General v. Campbell (c) was The Attorney- 
 as follows : — A., an Irishman by birth, but domiciled in g^^pfdJ' 
 Portugal, made his Will in English form, dated 1853, 
 by which he gave the residue of his personal estate to 
 trustees, who were also his executors, with directions 
 to invest the same in English Consols, and pay the 
 dividends to his wife B. during life. He also directed 
 that when the annuity so given should cease, the 
 sum set apart to answer it was to again fall into 
 residue for the benefit of C. and D. On the widow's 
 death, this sum having again become part of the residue, 
 the Crown claimed Succession upon it, and the House of 
 Lords, reversing a decision of Lord Romilly, M. R., held 
 that the increase of benefit to C. and D. was a succession 
 within sect. 5 of the Succession Duty Act, 1853 (d). The 
 difference between this case, that of Thomson v. The 
 Advocate-General (e), and that of Wallace v. The At- 
 torney-General (/), was pointed out by the Lord Chan- Property 
 cellor, who expressed the principle that, when the task abroad and™ 
 which is imposed upon a person of administering a de- made subject 
 ceased person's estate, involves the placing of the funds tureTs'Ssr*' 
 in such a position as to bring it within the judicature of ^"^^^^ *» 
 
 TCI • Legacy or 
 
 this country, and when those funds are in a state involv- Succession 
 ing succession from one individual to another, then the ^"^'^^ 
 Duty accrues and is leviable. 
 
 Lord Westbury also, after stating that the money left Money in set- 
 by the testator was to be brought here for investment in tho™gh.\)roughi, 
 our Consols, and that the sum was directed to be held ^™™ abroad, 
 upon certain trusts mentioned in the Will, pronounced 
 an opinion to the effect that there was therefore a settle- 
 Tnent made of the money, and that, accordingly, it 
 became impressed, so long as it remained here, with 
 the character of English property in respect of locality. 
 " That settlement so made, undoubtedly becomes subject 
 
 (c) Ante, n. {y), p.' 612. 153, cited ante, p. 611, n. (p). 
 
 {d) 16 & 17 Vict. c. 51. (/) L. E. 1 Ch. App. 1 ; 35 L. 
 
 (e) 12 CI. & F. 1 ; & C. 13 Sim. J. Ch. 124. 
 
616 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Summary. 
 
 Legatee under 
 a foreign Will, 
 resident here. 
 
 Legacy Duty 
 payable on an 
 annuity. 
 
 What persons 
 are to pay 
 Legacy Duty. 
 
 to the rules of English law, under which it is held, by 
 virtue of which it is enjoyed, and under which it will be 
 ultimately administered. That, therefore, is a description 
 of ownership which falls immediately within the pro- 
 visions of the Succession Duty Act." The matter may, 
 then, be thus summed up : — The Legacy Duty Act does 
 not extend to the Wills of persons who, at the time of 
 their decease, are domiciled out of Great Britain, whether 
 the assets are locally situated here or not. If the testator 
 does die domiciled here, then the Act will apply, only it 
 may not be possible to enforce it, if the deceased's assets 
 have to be administered abroad. If, however, in the 
 latter case these are distributed here, then the recipients 
 must pay Duty. As to Succession Duty the same ob- 
 servations are applicable, for if testator dies domiciled 
 abroad, no Duty is payable on his personal property, no 
 matter where that may exist, and the Succession Duty 
 is payable only by persons who become entitled to pro- 
 perty by virtue of our law. So long as property situated 
 abroad remains there, it cannot be made subject to an 
 English statute, but if it be transferred to this country, 
 and settled, it is at once divested of its character as a distri- 
 butive share of the testator or intestate's foreign property, 
 and becomes subject to our laws. And, as we have before 
 stated, the same happens where a legatee under a foreign 
 Will resides here, and has his legacy paid to him here — but 
 not if the testator died domiciled abroad (g). 
 
 Legacy Duty is also payable on an annuity for lives 
 (including the testator's), charged on land in the United 
 Kingdom, and bequeathed by a person having a foreign 
 domicile, because this amounts to an estate pur autre 
 vie, and as such it is personal estate for purposes of the 
 Legacy Duty Acts (h). 
 
 The persons upon whom the law casts the duty of pay- 
 
 (g) Wallace v. The Attorney- 
 QeneraZ, supra, n. (/). 
 
 (A) Chatfield v. Berchtoldt, cited 
 also, ante, p, 242, n. (d). 
 
OF EXECUTORS AND ADMINISTRATORS. 617 
 
 ing Legacy Duty are those who have, or take the burden 
 of, the execution of the Will or other testamentary 
 instrument, or the administration of the personal estate of 
 any person deceased (i), and the words " take, &c.," will 
 therefore, cause an executor de son tort (k), to he liable Executor de 
 for Legacy Duty to the Crown. Such persons, ►before f>n ton haUe 
 either retaining in their own right or for others, or paying 
 or discharging a legacy, or any part thereof, should deduct Effect of de- 
 and pay the Duty chargeable upon it, and if they fail to do a^d nol, payfng 
 the latter, having deducted the Duty, the amount becomes ''• 
 a debt due from them to the Crown. And if legacies are 
 paid without deducting the Duty at all, then the sum pay- Effect of pay- 
 able becomes a debt to the Crown both from the executors, i^g legacy 
 
 ■without de- 
 
 &c., and the legatees (t). ducting Duty. 
 
 Where a Will merely devises realty, no executor is who to pay 
 required, but in most cases, where such realty is charged ^^^"^g^j „^ 
 with the payment of legacies, there are trustees, and of realty. 
 course it may be there are no trustees at all. If there are 
 trustees, they will have to pay the Duty on the legacies 
 charged on the realty ; if there are no trustees, then Duty 
 is payable by the person entitled to the real estate, or 
 by the person or persons empowered or required to 
 satisfy the legacies (m). 
 
 If the person whose province it is to discharge the Executor pay- 
 Legacy Duty, by inadvertence or ignorance pays an annul- wHhou?d^- 
 tant or a legatee the sum due to him without deducting ducting Duty 
 
 itnj 1 ,1 .,. PI ■, ™*y recover 
 
 the Duty, we have seen tue position of each as to the this from 
 Crown. As between themselves, the person who has so '^s^*^^- 
 paid an annuity or legacy may, at any time, and whether 
 he has retained the gift or not, call upon the annuitant or 
 legatee to reimburse him the sum which he has been com- 
 pelled to pay as Duty (n). 
 
 (i) 36 Geo. 3, c. 52, s. 6. 45 ; The Attorney-General v. Wood, 
 
 (k) See imte, p. 570, and Han- 2 Young & Jervis, 290 ; Ooombe v. 
 
 son, p. 50. Trist, 1 My. & Cr. 69. 
 
 (l) 36 Geo. 3, c. 52, s. 6. As to (m) 45 Geo. 3, c. 28, s. 5. See 
 
 what is meant by "retaining a Hanson, pp. 134, 135. 
 
 lega.cy," see Mil Y. Atkinson, 2^67. (n) Stow v. Davenport, 5 B. & 
 
618 
 
 WILLS OF PERSONAIi PJROPERTY. 
 
 Executors may 
 pay legacies 
 and Duty by 
 instalments. 
 
 Executors 
 bound to take 
 a stamped re- 
 ceipt for 
 legacy. 
 
 Nature of the 
 receipt. 
 
 If a legatee refuses to accept his legacy with the Duty 
 thereou deducted, and afterwards brings an action for the 
 same, he may be condemned in all the costs of the 
 proceedings (o). 
 
 Executors, &c., may from time to time pay any legacy 
 or any part thereof, or make distribution of any part of 
 the residue on payment from time to time of such pro- 
 portions of the Legacy Duty as shall accrue in respect of 
 that part of such personal estate as they may so administer. 
 In other words, executors may pay legacies by instalments 
 and deduct a proportionate amount of the Duty charge- 
 able on each {p). 
 
 Executors, trustees, &c.,may not pay legacies, &c., charge- 
 able with Duty, without taking from the payees a receipt in 
 writing for the same, expressing the date of the receipt, 
 and the names of the testator, testatrix, or intestate of 
 whose estate the sum paid forms part, also the amount of the 
 legacy, &c., and the Duty payable thereon (q). This receipt 
 must also include interest which has accrued on the legacy, 
 whether it be a simple pecuniary legacy unpaid at the time 
 directed bythe testatorfor itspayment,or agiftof residue(r). 
 
 Ad. 359, citing Males y. Freeman, 
 ] Bi'od. & Bing. 391, and seeBatev. 
 Payne, 13 Q. B. 900; 18 L. J. 
 Q. B. 273, where Legacy Duty on 
 leaseholds was paid by an executor 
 on the property itself^ and on the 
 profits made thereon, during fifteen 
 years after the testator's death, and 
 the executor was held entitled to 
 recover the sum so paid from tho 
 person in possession, on sale of the 
 leaseholds. In other cases though, 
 the executor would have to bring 
 his action within six , years of the 
 testator's death. The Succession 
 Duty Act, 1853, it may be observed, 
 regards leaseholds as realty, and 
 accordingly, not Legacy, but Suc- 
 cession Duty is chargeable upon 
 such property, sects. 1, 19. 
 (o) 36 Geo. 3, c. 5?, s. 24. 
 
 (p) Id. s. 26. 
 
 (2) Id. =. 27. 
 
 (r) As to Duty where the pay- 
 ment of legacies is deferred by an 
 administration action, see Thomas 
 V. Montgomery, 3 Buss. 502 ; also 
 The Attorney-General v. Holbrook, 
 3 You. & Jer. 114 ; 12 Price, 407, 
 where the obligee of a bond, by 
 his "Will, forgave the obligor, and 
 the Court held that Legacy Duty 
 was payable ouly on the principal. 
 As to interest on Duty, see The 
 Attorney - General v. Cavendish, 
 Wightwick's Hep. 82 ; also 36 
 Geo. 3, c. 52, sects. 6, 22, 23, 33, 
 35, and 31 & 32 Vict. c. 124, 
 s. 9, as to interest at 4 per cent., 
 payable on arrears of Legacy and 
 Succession Duty. 
 
OP EXECUTORS AND ADMINISTRATORS. 619 
 
 Taxes imposed upon the transfer of property, whether All Acts of 
 as between living persons, or by way of gift to take effect ronceming the 
 after the death of the transferor, have been by some re- Revenue to be 
 
 ... ..,,.,, coDStrued m 
 
 garded as erroneous and unfair m prmciple, while those favour of the 
 who have to pay such taxes regard them as extremely ^"^J^"*- 
 burdensome. These views seem to have been to some 
 extent tacitly concurred in by the Courts, inasmuch as the 
 doctrine has repeatedly been there enunciated that all 
 statutes which concern the Eevenue are to be construed 
 strictly in favour of the subject (s). Again, eminent judges Transfer of 
 have stated that it was q aite competent to a person to so p™?^'^*;^ *" 
 
 ^ . "^ ^ prevent opera- 
 
 shape the disposition of his property as to avoid the pay- tiou of the 
 ment of Legacy Duty (t), as by giving it away before his Aotsmiite*^ 
 death, of course assuming that every proceeding of the legal. 
 kind would be of a strictly bond fide character. 
 
 But although a disposition of property by gift inter ^iit inter vivos 
 VIVOS might escape theLegacy i)uty,it would — just as would cession Duty, 
 a contract for payment, &c., of money to take effect after ^f * "dieposi- 
 the donor's or settlor's death — fall within the purview of the 
 Succession Duty Act, 1853. The second, which is the 
 leading section of that Statute, declares that every past or 
 future (u) disposition of property (x), by reason whereof 
 
 (s) Hobson V. Ncale, 17 Beav. 4tli of August, and so the words 
 
 178. 'has,' or 'shall,' accordingly, have 
 
 {t) See the judgt. of Lord Lynd- reference to the same period." 
 
 hurst, C. B., in Be Evans, 2 C. Per Kindersley,. T.-(J., in Wilcox 
 
 M. & E. 221 ; 4 L. J. Ex. 208 ; v. Smith, i Drewry, 40 ; 26 L. J. 
 
 andthatof Knight Bruce, V.-C, in Ch. 596. The judgment of that 
 
 Farqitharson v. Cavi, 2 Coll. C. C. learned Vice-Chaucellor in this case 
 
 366 ; 15 L. J. Ch. 137. See as to was pronounced by Pollock, C. B., 
 
 the latter case, ante, pp. 14, 27, 28, in The Attomey-Qeneral v. Lord 
 
 29,32. N.B. Read page 610. Jt/MdZcioji, 3 H. & N. 125 ; 27 L. J. 
 
 (u) " Past, " means previously to Ex. 239, to be " a very masterly and Meaning of 
 
 the passing of the Act, and "fu- elaborate investigation of the whole '"'ords "past''^ 
 
 ture,"subsec[uently thereto. "Icon- subject " before them, that is, of the aid " future"- 
 
 sider that 'past disposition,' within liability of pi'operty— real in this gjon Dutv Act 
 
 the meaning of this section, means a instance — to Succession Duty, when 1853. 
 
 disposition made at any time, how- acquired by disposition, and not by 
 
 ever remote, previously to the day of devolution. 
 
 the passing of the Act . . 'Past,'or {x) "Property" in the Act in- _ 
 
 'future,' then, has reference to the eludes both realty and personalty, 
 
 time of the passing of the Act, the sect. 1. 
 
620 
 
 WILLS OF PERSONAL PROPERTY. 
 
 "Devolution' 
 of property. 
 
 Exemptions 
 from Legacy 
 Duty. 
 
 any person has or shall become beneficially entitled — 
 that is to say not as a trustee — to any property, or the 
 income thereof, upon the death of any person dying after 
 the time appointed for the commencement of the Act (y), 
 either immediately or after any interval, either certainly 
 or contingently, and either originally or by way of substi- 
 tutive limitation, shall be deemed to have conferred or to 
 confer on the person entitled by reason of any such dis- 
 position a succession— the technical meaning of which 
 term in the Act is property (sect. 1). And of a devolution 
 of property — or the acquisition thereof wholly in conse- 
 quence of another's death — it is enacted that where such 
 property is beneficially taken in possession or expectancy, 
 there also a succession is created. Accordingly, by reason 
 of this section, gifts inter vivos and those by Will are alike 
 liable to Succession Duty. 
 
 Legacies given under the following circumstances are 
 exempt from Duty : — 
 
 (1.) If given to or for the benefit of any of the Eoyal 
 Family (z). 
 
 (2.) Or to the husband or wife of the deceased (a). 
 
 (3.) Legacies of specific articles to any corporation sole 
 or aggregate (b), or to any of the Inns of Court 
 or Chancery (c), or any endowed school pro- 
 vided they are to be retained and not sold (d). 
 
 (4.) For any charitable purpose in Ireland (e). 
 
 (5.) A Legacy not exceeding the value of £50 given out 
 of funds in a Savings Bank in England or Ire- 
 land, deposited therein by the testator (/). 
 
 {y) The Act received the Eoyal 
 Assent on August 4, 1853, but its 
 54th section declares its operation 
 to have commenced on May 19th of 
 that year. 
 
 (z) 36 Geo. 3, c. 52, a. 2 ; Sche- 
 dule to 55 Geo. 3, c. 184. 
 
 (a) Id. Ibid. See Ee Harris, 
 1 Ex. Rep. 344 ; 21 L. J. Ex. 92 ; 
 Newill V. Newill, L. E. 7 Ch. 253 ; 
 
 41 L. J. Ch. 432. 
 
 (6) See ante, p. 458 n. {k). 
 
 (c) 36 Geo. 3, c. 52, s. 21. The 
 Act also names Serjeants' Inn, but 
 this institution, as such, ceased to 
 exist on Feb. 23, 1877. 
 
 {d) 39 Geo. 3, c. 73, s. 1. 
 
 (e) 5 & 6 Vict. c. 82, s. 38. 
 
 (/) 9 Geo. 4, c. 92, s. 40. 
 
OF EXECUTORS AND ADMINISTRATORS. €21 
 
 (6.) Where the testator has set apart any sum expressly 
 for the purpose of paying the Legacy Duty, such 
 sum is not itself liable to Legacy Duty {g). 
 (7.) No Duty is payable on plate, furniture, &c., or other 
 things not yielding income enjoyed in succession, 
 until sold, or until it comes into the hands of 
 the person having power to sell or dispose of 
 them (A). 
 These exemptions, except in the case mentioned below (g), When gift 
 apply equally to dispositions imder the Act of 18o3 (i), as to fro™LegacT 
 legacies given under the above circumstances, so that when Duty, also 
 a gift is by the Act of George III. expressly exempt from Succession 
 Legacy Duty, it is also exempt from Succession Duty (k). •'^"*y- 
 Further, although all legacies over the value of ^20, whether Legacy Duty 
 given in one sum or several sums to the same person, are s^msoTer£20 
 chargeable with Duty, real property under the value of Succession 
 £100 derived on any death from the saine predecessor is cessfo™ over 
 not chargeable in respect of Succession Duty (l). ^i""- 
 
 A testator very often bequeaths legacies to be paid to Legacy given 
 
 free of Duty. 
 (g) 36 Geo. 3, c. 52, s. 21. But Duty. Other subsequent Acts cou- 
 " money applied hy the testator's cerning the Legacy Duty are not 
 direction out of his personal estate prospective. The Succession Duty 
 in Tpajmeat of Succession Duty u^on Act, 1853, was also intended to 
 his real property, is not exempted have a retrospective operation — at 
 from Legacy Duty by either Act." any rate as to rfisposiiioms of property 
 Hanson, 295. — that is to say, ' ' to embrace all ac- 
 {h) Id. s. 14. ■ quisitions of property by reason of 
 (i) 16 & 17 Yict. c. 61, s. 1 8. death after the Act came into opera- 
 {k) But only where it is expressly tion, . . The Legacy Duty Acts . . 
 exempt ; The Attorney-General v. divide the Duty into two classes, 
 Fitzjohn, 2 H. & N. 465 ; 27 L. J. those where the testator died before 
 Ex. 79. "We think that the ex- April 5, 1805, and those where he 
 emptions in the 18th section of the died after that period." Disposi- 
 Succession Duty Act apply to those tions by deed are therefore within 
 legacies expressly exempted by the the retrospective operation of the 
 other Acts." Judgt. Act of 1853. See The Attorney- 
 's OTs.—Legitcies bequeathed to General v. Middleton, SB.. &'S. 125; 
 children were first made chargeable 27 L. J. Ex. 229. Noticed again ^ost. 
 with Duty by the statute 45 Geo. 3, (l) 16 & 17 Vict. c. 51, s. 18. And 
 c. 28. This, with 36 G. 3, c. 52, where any interest in property was 
 were prospective; but 55 G. 3, c. 184, surrendered or extinguished before 
 was retrospective as to the property May 19, 1863, such interest is not 
 and the rate chargeable upon it as chargeable with Succession Duty. 
 
622 WILLS OF PERSONAL PROPEKTY. 
 
 the legatees free of Duty, and questions occasionally arise 
 in such cases as to whether the language he has employed 
 to denote his wishes on this point is sufficiently explicit 
 to effectuate them. If there can be no doubt on the sub- 
 ject, the legacy must be paid without any deduction, and 
 the Duty becomes chargeable on the general personal estate. 
 But if legacies are given free of Duty, with a direction 
 that this shall come out of residue, and there is no residue 
 available for payment of Duty, it has been held that this 
 gift of the Duty in such case fails pro tanto, and that 
 therefore the legacies would have to bear the Duty (m). 
 
 This provision by a testator amounts to a gift of Legacy 
 
 Duty, and is in fact an addition to the legacy given to enable 
 
 the legatee, specific or pecuniary, to pay the Duty. If, 
 
 therefore, it be necessary for pecuniary legacies to abate, the 
 
 gift of Legacy Duty must abate with the other pecuniary 
 
 legacies. In the case of specific legacies, their value 
 
 must be ascertained, also the amount of Duty payable 
 
 upon them, and then they must be treated just as 
 
 pecuniary legacies as to their abatement (n). 
 
 Testator de- -^ testator, then, who desires to relieve his legatees from 
 
 sirousofre- the Legacy Duty should take care to provide a fund for 
 
 of Duty should the payment thereof, and also be careful to use plain 
 
 employ plain a,Q(j unambisruous language in his directions on the 
 
 terms for tne , . , o o 
 
 purpose. subject (o). 
 
 (m) Wilson v. O'Leary, L. E. 17 (n) Judgt. of Lord Selbome, C. 
 
 Eq. 419. (sitting for Lord EomiUy, M. E.) in 
 
 N.Pi. — Legacy Duty on income Farrer v. St. Catherine's College, 
 
 arising from a residue directed to L. E. 16 Eq. 19 ; 42 L. J. Ch. 809. 
 
 J, . be laid out in land, must be paid by (o) Thus in a legacy to A. " free 
 
 held to exempt ^^^ tenant for life entitled to such of Legacy or any other Duty," 
 
 legacies from income, although the Will may there cam be no mistake, and the 
 
 Duty. contain a direction for payment of following phrases, though less dis- 
 
 tte Duty on all annuities and tinct, have been held to have the 
 
 legacies out of the general personal same effect : — " without any deduc- 
 
 estate ; in other words, residuary tion," " clear of property tax, and 
 
 personal estate is itself subject to all other expenses attending the 
 
 Duty. See Lord Londesborotigh v. same," "free from all expense," 
 
 Somerville, 19 Beav. 295 ; 23 L. J. "to be paid clear." 
 
 Ch. 646. 
 
OF EXECUTORS AND ADMINISTRATORS. 623 
 
 If a legacy be given by Will free of Duty, and another Legacy given 
 legacy be given to the same person without mentioning g^^^;]j p^*^" 
 the Duty at all, then the latter gift will, in the absence ^«c« exempts 
 of anything to indicate a contrary intention, be considered by^codicu!™" 
 free also. But even one word may have the effect of charg- 
 ing a second legacy given by codicil, and that too where the 
 testator distinctly affirms that the codicil shall be read as 
 part of his Will. An instance of this may be seen in Useofword 
 Early y. Benhow lip). There, the testator in his Will, "herein "in a 
 
 . . . ' . , , Will as to 
 
 when directing legacies to be paid free of Duty, used the legacies, ex- 
 word "herein," but in a subsequent codicil said nothing "Ididi*''"^*''' 
 about the Duty, and Knight-Bruce, V.-C, held that the 
 word "herein," referred to the Will only, and did not 
 include the codicil {p). 
 
 We have seen a{ page 206, that annuities, whether Three kinds of 
 rent-charges or personal annuities, being considered as a^n^itLr 
 legacies, are liable to Duty as such. The Legacy Duty mentioned in 
 Act (36 Geo. 3, c. .52, ss. 8, 9, 10) speaks of three kinds of „. 52. ' 
 legacies given by way of annuity :— (1) A legacy so ^^ ^^i^^ 
 bequeathed, payable annually or otherwise for any life annuity. 
 or lives, or for years determinable on any life or lives 
 or for years, or other period of time ; (2) Those pay- Payable out of 
 able out of legacies — as where a gift is to A. provided * *^^^' 
 he allow B. so much a year out of it — and given for any 
 life or lives, &c., &c. ; (3) Legacies given to purchase Legacy to pur- 
 annuities.- In each of these cases the Duty payable is to be '^'^^^ annuity, 
 calculated by the Tables set out in Table II. of the Schedule Duty on lega- 
 to the Succession Duty Act, 1853, which Tables are also <=ies as aunui- 
 
 (p) 2 Coll. C. C. 354. This appears to apply to a legacy substituted in a legacy given 
 
 rather a curious case, considering codicil for one given in a Will. in codicil in 
 
 that a codicil is part of a testa- Note. — A legacy which from any ^'"^stitution ^ 
 
 mentary disposition, and that the cause never vests in a legatee, is of ^ °^?iJ^^. 
 
 Legacy Duty Acts are to be con- course not chargeable with Duty, gjso free." ^' '* 
 
 strued strictly in favour of the sub- and if a legatee disclaims the gift 
 
 ject. Bead with Sarly v. Benbow, to him, no Duty in this case is 
 
 the case of Cooper v. Day, 3 Mer. payable by him. Hanson, 53. But 
 
 154, where the above rule was held as we have stated on a previous 
 
624 
 
 WILLS OF PERSONAL PROPERTY. 
 
 ties valued by 
 the Tables of 
 the Succession 
 Duty Act. 
 
 Mode of calcu- 
 lating Duty. 
 
 Payable by 
 four equal 
 instalments. 
 
 Example of 
 calculating 
 Duty on an 
 ordinary 
 annuity. 
 
 to be used for the valuation of annuities or interests 
 cliargeable as such under the latter statute (q). When 
 the value of the annuity is ascertained, the Duty ^thereon 
 is to be paid by four equal instalments, the first of which 
 is to be made before or on completing the payment of the 
 first year's income, and so on as to the other three (r). 
 With regard to a legacy charged with an annuity, accord- 
 ing to the terms of section 9, if Duty is payable on the 
 legacy it iS to be paid thus : — The Duty shall be calcu- 
 lated on the value of such legacy after deducting the 
 value of the annuity chargeable upon it ; and then Duty 
 on the annuity is to be paid by four equal instalments, 
 not by the executors, &c., but by the persons entitled to 
 the legacy charged ; such payment, however, being retained 
 from the yearly annuity by him who |)ays it, just as if the 
 annuity had been a direct gift to the annuitant, and this 
 is subject to the provisoes in section 8 as to the annuity 
 determining before four years' payment become due, &c. 
 If A. gives B., who is forty years of age, and a stranger in 
 blood to him, an annuity of £400 a year for his life, this 
 is a legacy within section 8 ; it is held on a single life, 
 and is determinable upon his decease. Looking at 
 Table I. in the Schedule to the Succession Duty Act, 
 1853 (s), we see that the value of an annuity of £100 held 
 
 page of this work, an English heir- 
 at-law cannot disclaim his inheri- 
 tance, and as to other successions, 
 the Duty is to be paid when the 
 successor, or any other person in 
 his behalf, becomes entitled in pos- 
 session ; 16 & 17 Vict. i;. 51, s. 20. 
 So that although he may disclaim 
 his succession if he pleases, that 
 win only transfer it to some other 
 person who will have to pay the 
 Duty. 
 
 (q) 16 & 17 Vict. 0. 51, s. 31. 
 But these Tables apply only to 
 legacies where testator died after 
 May 19, 1853, the date of the 
 
 Succession Duty Act, and does not 
 extend to cases where, the death 
 being before, the act of calculation 
 and payment occur after the above 
 date. In re, Comwallis, 11 Ex. 
 Eep. 580 ; 25 L. J. Ex. 149. 
 
 (r) Section 8 also provides for the 
 cases of the annuity determining 
 by the death of any person, or by 
 any other contingency, before four 
 years' payment of the annuity has 
 been made. 
 
 (s) There are three Tables in the 
 Schedule : — No. I. Gives the values 
 of an annuity of £100 per annum, 
 held on a single life. 
 
OF EXECUTORS AND ADMINISTEATORS. 625 
 
 on a single life, aged 40, is £1487 10s. The value of au 
 annuity of £400, therefore = (£1487 10s. x 4); and 
 as B. is a stranger in blood to A., we multiply by 10 — that 
 being the percentage upon a gift of personalty, by one 
 person to another not related to him — and the result, 
 when divided by 100, produces the total amount of Duty 
 chargeable on such annuity, namely, iG595. This, however, 
 has to be paid by four equal instalments; so that an 
 annuitant of £400, under the above circumstances, wUl, 
 if the Duty be paid yearly, enjoy an income for four years 
 of only (£400— £i|^), £251 5s. per annum. 
 
 In the next place, suppose A., a stranger to the testator. Example of 
 to receive a legacy of £10,000, subject to the payment of p^^y on"^ 
 an annuity of £100 per annum to B. for life, who is of the annuity pay- 
 
 , , „ • . , 1 1 , ■ able out of a 
 
 same age as the former annuitant, and also a stranger, legacy. 
 
 Here is an annuity payable out of a legacy, and by sect. 9 of 
 
 36 Geo. 3, c. 52, we must calculate as before, only there must 
 
 be a deduction of the value of the annuity. By the Table 
 
 such value is £1487 10s., and deducting this from £10,000 
 
 we have £8512 10s. A., the legatee, being a straiiger in 
 
 blood, pays 10 per cent, on the latter amount, that is to 
 
 say, £851 5s., and in addition, the annuitant pays by four 
 
 equal payments the entire sum of £148 15s., the Duty 
 
 on his annuity, coming out of A's legacy, and which is 
 
 subtracted from the £100 per annum. If we add these 
 
 two sums together their total is found to be £1000, exactly 
 
 the sum that A. would have paid had he taken the £10,000 
 
 without any charge upon the gift ; so that although the 
 
 legatee pro tern, loses £100 a year by reason of the 
 
 annuity, and the annuitant only receives £62 16s. 3cZ. 
 
 per annum, the Revenue is secured against loss, and gets 
 
 Duty just as if the legacy were direct to A. without any 
 
 charge upon it. " But the section does not apply where where annuity 
 
 the annuity is given directly to the annuitant and has to '^ ^™" '^V 
 
 - reotly to the 
 
 No. II. Those of an annuity of No. III. Giving the values of au 
 
 £100 per annum, held on the joint annuity of £100 per annum, for any 
 continuance of two lives, and number of years not exceeding 95. 
 
626 
 
 WILLS OF PERSONAL PROPEETY. 
 
 annuitant, 
 and Duty to 
 he paid by 
 executor. 
 
 Duty on legacy 
 given with 
 direction to 
 purcliase an 
 annuity. 
 
 The Duty in 
 this case pay- 
 able upon the 
 value of the 
 ammity itself. 
 
 Annuitant 
 when dis- 
 charged. ' 
 
 be satisfied by the executor — as in the case, for instance, 
 of a legacy of £20 a year to 0. D., and the residue of the 
 estate to A. B. In such a case the annuity is not 
 ' charged on any other legacy,' in the sense of the statute, 
 and A. B. has no right to any part of the estate until the 
 annuity has been provided for, and the executor, not A. B., 
 is liable to satisfy the annuity, and is of course entitled to 
 retain a fund for that purpose. There is no need, there- 
 fore, for transferring to A. B. the liability to pay the Duty 
 on the annuity " (t). 
 
 As to Duty upon any legacy given by direction to 
 purchase out of the personal estate of a testator, or any 
 part thereof, of an annuity for life or lives, this by the 
 10th section of 36 Geo. 3, c. 52, is to be calculated upon 
 the sum necessary to purchase such annuity, according to 
 the proper tables, which are the same as those before 
 mentioned, namely, those of the Succession Duty Act 
 1853, and the Duty shall be deducted from such sum, 
 and paid as in the case of pecuniary legatees. At first 
 sight, it might be supposed that the Duty in this instance 
 would be payable upon the money actually expended in 
 purchasing the annuity, but Mr. Hanson (u) points out 
 that the Duty is payable not upon that sum, but upon the 
 value of the annuity itself, calculated according to the 
 tables provided for the purpose (u). The section (10) 
 then goes on to say, that the person or persons for whose 
 benefit the same shall be paid shall be discharged, by the 
 mode of payment indicated, from all other demands in 
 respect of Legacy Duty, and that the amount of the 
 annuity shall be reduced in proportion to the amount of 
 Duty payable thereon as aforesaid, the reduction being 
 
 (t) Hanson, 75, 76 ; and see the 
 observations there as to the strict 
 course to be pursued by an executor 
 in such eases, and the practice 
 adopted in regard thereto in the 
 office of the Commissioners of In- 
 land Eevenue. 
 
 (u) Besides the Tables mentioned 
 
 in the text, we have what are called 
 "The New Government Tables," 
 which have . been officially framed 
 for the purposes of the Succession 
 Duty Act, 1853. By these may be 
 found the values of annuities from 
 Is. up to any amount, and for any 
 age from bii'th to 95. 
 
OP EXECUTORS AND ADMINISTRATORS. 627 
 
 calculated in the same maimer as the Duty was calculated. 
 The purchase of such reduced annuity, together with the 
 payment of such Duty, will discharge the legacy as fully 
 as if an annuity had been purchased equal in amount 
 to the annuity so directed to be purchased. The above 
 statements may thus be exemplified : — A., a testator, Example of 
 bequeaths a sum of money which he directs to be laid out ^°f P"'y '^ 
 
 ■' . calcmated on 
 
 in the purchase of an annuity of £100 per annum for B., an annuity 
 who is 40 years of age, and a stranger in blood to him. ^'p^ond""* 
 Now, under the "New Government Tables," the value of estate of 
 an annuity of £10 for a life aged 40, is £148 15s., and, 
 accordingly, that of an annuity of £100, on the same life, 
 is £1487 10s. (w), which is the sum upon which Duty is 
 to be paid, and as the annuitant is a stranger in blood to 
 the testator, the Duty payable is (£1487 10s. x -j-V) or 
 £148 los., and j.s payable not by instalments, but at once. 
 This is next deducted from £1487 10s., leaving £1338 15s., 
 the actual sum to be expended in purchasing the annuity. 
 This, instead of producing £100 per annum, would return 
 
 (£1338- \ 
 
 ' ^ X 100 J or £90, which is the same 
 
 thing as £100 a year minus the Duty of 10 per cent. 
 
 The statute 45 Geo. 3, c. 28, s. 1, was the first that When Duty 
 imposed a Duty upon legacies to or for the benefit of chil- onlegSfo 
 dren and their descendants. The same Act also provides children, 
 for Duty upon legacies of the value of £20 or more charged Annuities out 
 upon or given out of real estate, and which if payable ° ^^^ ^' 
 or arising out of personal estate would have been charge- 
 able with Legacy Duty (x), and we have also seen that the 
 Duty payable on legacies charged on real estate, are pay- 
 able by the trustees of the property, and where there are 
 no trustees, then by the person or persons entitled to the 
 
 {w) The result is the same as if and upwards ; but Duty is now 
 
 we had employed No. I. of the chargeable on all residue and shares 
 
 Statutory Tables. thereof of the value of ^620 and up- 
 
 (x) The statute provided that ' wards without regard to the aggre- 
 
 the Duty was payable only where gate value of the estate. Hanson, 
 
 the residue was of the value of £100 ii, 129. 
 
 8 8 2 
 
628 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Powers of 36 
 G. 3, o. 52, 
 incorporated 
 into 45 G. 3, 
 i;. 28. 
 
 Exercise of 
 Power creating 
 an annuity 
 and causing 
 Duty to be 
 chargeable. 
 
 The Succession 
 Duty Act, 
 1853. 
 
 General de- 
 scription of 
 the Act. 
 
 Exception as 
 to succession 
 in the Act. 
 
 estate {y). On examining the 36 Geo. 3, c. 52, it will be 
 seen that it does not mention charges on lands by way of 
 annuity, but under sebtionQ of 45 Geo. 3, c. 28,all the powers 
 of the former statute are to be considered as introduced 
 into the later one. Accordingly, where a tenant for life 
 by his Will exercised a Power of appointment by which 
 he charged his estate with an annuity to his wife, this 
 annuity was held to be a legacy charged upon the realty, hy 
 the Will which created the Power to charge, and that the 
 case was the same as if the person to whom it was given, 
 by the execution of the Power, had been mentioned by 
 name, and that it was therefore Hiible to Legacy Duty {z). 
 We must now glance at the general features of The 
 Succession Duty Act, 1853. This statute, which has 
 been pronounced by some high authorities to be a model 
 of legislative skill, applies to the whole of the United 
 Kingdom of Great Britain and Ireland, and embraces 
 both real and personal property. Sir G. Jessel, M. R., 
 thus describes the Act in his Judgment in Fryer v. 
 Morland (a) : — " It is ' An Act for granting to her Majesty 
 Duties on succession to property, and for altering certain 
 provisions of the Acts charging Duties on legacies and 
 shares of personal estates ' . . . . Looking at the Act as 
 a whole, it is an Act to grant Duties on succession to pro- 
 perty by persons succeeding to gratuitous life estates. 
 The man is to pay the Duty who gets something on the 
 death of the prior owner, either by way of settlement, or 
 gift, or descent. The only exception that I can find to 
 
 (2^) Arde, p. 617. 
 
 (s) The Attorney ■ General v. 
 Pichard, 3 M. & W. 552 ; 7 L. J. 
 Ex. 188 ; affirmed in the Exchequer 
 Chamber, sub nam. Pickard v. The 
 Attorney-Oeneral, 6 M. & W. 348 ; 
 9 L. J. Ex. 329. See also 8 & 9 
 Vict. c. 76, o. 4, as to a Power 
 created by deed and executed by 
 Will ; also The Attorney-Oeneral v. 
 Bertford, 3 Ex. Kep. 670, 18 L. 
 J. Ex. 332. 
 
 (a) L. E. 3 Ch. Dir. 675 ; 45 L. 
 J. Oh. 817. See also as to how the 
 statute is to be read for purposes of 
 interpretation. Lord Brayhrooke v. 
 The Attorney-General, 9 H. L. 150 ; 
 31 L. J. Ex. 177, where it is stated 
 that the Act is not to be considered 
 according to the technicalities of the 
 law of real property, but according 
 to the popular use of the language 
 employed in it. 
 
OF EXECUTORS AND ADMINISTRATORS. 629 
 
 that principle is, that a marriage consideration is treated 
 as if it were a gratuitous title for this purpose. The kind 
 of contract which is made on marriage to provide for the 
 issue is treated as creating a succession. That seems the Questions 
 general notion of the thing ; " and "questions arising on ActmusTbt'* 
 this Act," says the same learned judge, in the same case, determined as 
 " evidently must be determined on a general view of its intention, not 
 meaniner and not on a nice criticism of any particular ^"p™ ™":«. 
 
 ° •' >■ teclinicalities. 
 
 section." 
 
 The term " real property " in the statute includes all Meaning of 
 freehold, copyhold, leasehold, and other hereditaments and pertjT" in°the 
 heritable property, -whether corporeal or incorporeal, statute. 
 except money secured on heritable property in Scotland, 
 and all estates in such hereditaments. " Personal pro- " Personal 
 perty '' includes money payable under any engagement, ™^^ ^' 
 money secured on heritable property in Scotland, and all 
 other property not comprised in the preceding definition 
 of real property. " Property " includes realty and per- 
 sonalty. " Succession " denotes any property chargeable "Succession." 
 with Duty under the Act. "Trustee" includes an exe- "Trustee.' 
 cutor or administrator, and any person taking upon him- 
 self the administration of property affected by an express 
 or implied trust. "Person" includes a body corporate, "Person." 
 company, and society (sect. 1). 
 
 The Act deals with dispositions and devolutions of The Act 
 property, so that there appears to be no means of avoiding ^^™^^„5 
 the operation of the Act, except by selling property s,niDevoiu- 
 actually and bond fide (&), for this, although a " disposi- therefore 
 tion," is not such as will confer upon the buyer a beneficial set'l^e°ts 
 right withm the meanmg of the Act. A transfer of pro- ^ cannot be 
 perty by bond fide sale cannot create the relation of " sue- evaded otlier- 
 cessor " and " predecessor" required by the Act (c), because bmdjideaile^ 
 
 of property. 
 
 (6) See sects. 7 & 8, as to at- perty. Fryer r. Morland, supra, 
 
 tempts to evade Duty. This was the first case on the (jues- 
 
 (c) Not even where it is on the tion as to whether a bond fide con- 
 consideration that a sum shall he veyance or assignment of property 
 paid on the death of the purchaser, comes within the Act. 
 and secured as a charge on the pro- 
 
630 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Succession by 
 survivorship in 
 cases of joint 
 tenancy. 
 
 Exercise of a 
 general Power. 
 
 the vendee, although no doubt a " successor," really ac- 
 quires his interest from himself, and the Act speaks of 
 dispositions " by reason whereof any person has or shall 
 become beneficially entitled, &c.," clearly pointing to a 
 gift by deed or Will (sect. 2). 
 
 Where any persons have any property vested in them 
 jointly, by any title not conferring upon them a succes- 
 sion, those who acquire any beneficial interest in such 
 property by survivorship (d), axe deemed successors, and 
 those from whom the successors derive their interest are 
 deemed predecessors. Again, if two or more persons take 
 a succession jointly, they must pay Duty in proportion to 
 the interests they take ; and so often as one of several 
 joint tenants dies, so often is a new succession created, 
 which is derived, not from the other joint tenants, but 
 from the predecessor who conferred the joint title 
 (sect. 3). 
 
 The exercise of a general Power of appointment (e), 
 derived from a deed or Will taking effect on the death of 
 a person after the commencement of the Succession Duty 
 Act, is held to place the appointor in the position of a 
 person entitled, at the time of his exercising such Power, 
 to the property or interest he appoints, as a succession de- 
 rived from the donor of the Power. Where a person has 
 a limited Power of appointment under a disposition (/), 
 taking effect upon any such death, the appointee under 
 such Power takes it as a succession from the creator of the 
 Power as predecessor (sects. 4 and 33) {g). 
 
 (d) See as to joint tenancy, ante, 
 p. 524. There is no survivorship as 
 between husband and wife for the 
 purposes of this statute, where there 
 is a gift to them jointly and one 
 dies. " But if the gift is such as to 
 confer on them a succession in the 
 first instance, the Duty must be 
 paid on the value of an annuity for 
 the longest of the two lives. " Han- 
 son, 254. And by Schedule, Part 3, 
 to 55 Geo. 3, c. 184, neither the hus- 
 
 band nor wife surviving can be 
 charged with Legacy Duty. And 
 see sect. 11 of the Act of 1853. 
 
 (e) Ante, 279, 289. 
 
 (/) Id. 
 
 (g) See on the construction of 
 this section, The Attorney-General 
 V. Upton, L. E. 1 Ex. 224 ; 35 L. 
 J. Ex. 138 ; The Attm-ney- General 
 V. Charlton, L. E. 1 Ex. 204 ; 45 L. 
 J. Ex. 354 ; and the concluding re- 
 marks of Pollock, C. B.jinhisjudg- 
 
or EXECUTORS AND ADMINISTRATOES. 63] 
 
 Succession duty is payable also in the following cases: — Other cases 
 (a.) Where determinable charges on property are ex- Succession 
 
 tinguished (sect. 5). _ ^^^.^ 
 
 (b.) Where any disposition is made reserving a benefit 
 
 to the grantor, &c. (sect. 7). 
 (c.) Where any disposition is to take effect at a period 
 
 depending on death, or made for the purpose of 
 
 evading Duty (sect. 8). 
 (d.) Where interests are transferred, as in the case of a 
 
 reversionary interest expectant on death being 
 
 aliened (sect. 15). , 
 
 (e.) In the case of a succession subject to trusts for Generally in 
 
 charitable purposes (sect. 16) ; descent, sur- 
 
 and generally in all cases where property is derived by 7'™sl"P. o^ 
 
 ° '' , , J. J. J J intestacy. 
 
 descent, survivorship, or intestacy. 
 
 Kules for valuing lands, houses, &c. (22), timber (23), ^^1^^^°^^ 
 advowsons (24), property subject to beneficial leases (25), different kinds 
 manors, mines, &c. (26), and the Duty payable by corpora- °* P™perty. 
 tions, &c., on taking real estates, are given in the sections 
 indicated by the figures added as above. 
 
 Real property directed to be sold is to be deemed E«alty directed 
 
 . to be sold 
 
 personalty (29), and personalty ordered to be invested m regarded as 
 the purchase of realty to which the successor would be P^'^^o°''i'y- 
 absolutely entitled, so far as not chargeable under the 
 Legacy Duty Acts, is chargeable under the Succession 
 Duty Act as personal estate. Personalty subject to any Personalty 
 trust for investment thereof in the purchase of realty, to trust, how 
 which the successor would not be absolutely entitled, is, ™'^^^- 
 so far as such property is not chargeable under the Legacy 
 Duty Acts, chargeable under this Act as realty. And for the 
 purposes of the Act each successor's interest is to be deemed 
 an annuity, payable during life, or any less period during 
 which he shall be entitled, equal in amount to the annual 
 produce of the trust property at the time he becomes 
 entitled in possession, whether the produce be from the 
 
 ment in The Attorney-Qemral v. 9, again referred to, post. 
 Ahdy, 1 H. & C. 266 ; 32 L. J. Ex. 
 
632 
 
 WILLS OF PERSONAL PROPERTY. 
 
 No policy of 
 insurance to 
 create the 
 relation of 
 successor and 
 predecessor. 
 
 Post obit 
 bonds. 
 
 A bond or 
 contract for 
 payment of 
 money is not 
 
 realty purchased, or from any iutermediate investment of 
 the personalty (sect. 30). 
 
 No policy of insurance on the life of any person shall 
 create the relation of successor and predecessor between 
 the insurers and the assured, or between the insurers and 
 any assignee of the assured (A) ; but any disposition or 
 devolution of the moneys payable under such policy will 
 be deemed to confer a succession (sect. 17) (*). 
 
 The same section of the Act further declares that no 
 bond or contract made by any person bond fide and for 
 money's worth, for. the payment of money or money's 
 worth after the death of any other person (k), shall create 
 the relation of predecessor and siiccessor between these 
 parties, but any disposition or devolution of the moneys 
 payable under such bond or contract, if otherwise such as 
 in itself to create a succession within the provision of the 
 Act, shall be deemed as before to create a succession. 
 The second part of the section deals then with those in- 
 struments known as post obit bonds, which though ordi- 
 narily conditioned to be void on payment of a sum secured 
 after the death of a third person, yet may be conditioned to 
 be so upon the death of the obligor himself And, as 
 remarked by the present Master of the Rolls in Fryer v. 
 Morland, a bond or contract for the payment of money is 
 not a disposition of property, although it might be if it 
 
 (A) As to assignees of a policy of 
 insurance not being liable to Duty 
 on tbe sum assured, see In Se 
 Maclean's Trusts, L. E. 19 Eq^. 
 274 ; 44 L. J. Ch. 145, judgt. of 
 Jessel, M.R. 
 
 («) See The Attorney-General t. 
 Abdy, 1 H. & C. 266 ; 32 L. J. 
 Ex. 9. From this case it -would 
 appear that if a person is a con- 
 tributor to any general fund, from 
 which a certain sum is payable to 
 his representatives at his decease, 
 and he leaves that sum to any other 
 person by his Will, that this creates 
 
 the relationship of successor and 
 predecessor so as to cause Succes- 
 sion Duty to be chargeable, although 
 during life he could have had no 
 other control over the sum beyond 
 the power of bequeathing it by Will. 
 {Jc) Nor would there be a succes- 
 sion if the bond were for payment 
 of money, &o., by the obligor, after 
 his own death. See Fryer v. 
 Morland, ante, p. 628, n. (a), and 
 read with this case In re Jenkinson, 
 24 Beav. 64 ; 26 L. J. Ch. 241 ; 
 and The Attorney-General v. Baker, 
 4 H. & N. 19. 
 
OF EXECUTORS AND ADMINISTKATORS. 633 
 
 were for the payment of money after the death of the * disposition 
 
 IT 1- Tn • 'J. ij- -1 of property, 
 
 obligor or contractor himseit, smce it would give a right unless made 
 against his assets. It will be seen that the statute em- ^°l payment 
 
 o _ ^ alter the con- 
 
 ploys the words " bond fide for valuable consideration " tractor's death, 
 with regard to these bonds, and this is because they have 
 always — by reason of the facility with which they may be 
 made to serve fraudulent ends — been looked upon with 
 suspicion and discouraged by Courts of Equity (1). 
 
 Sections 28, 33, 34, 37 and 38, provide for allowances Sections of the 
 for fines &c., paid by successors of copyholds, &c. ; to ^r*^°^!f™fg 
 donees of general Powers of appointment, where allow- for fines, ' 
 
 J J. • i ,1 J. J. r incumbrances, 
 
 ances are made tor incumbrances ; then as to return oi ^^^ contingent 
 Duty, and next in respect of relinquished property, re- incumbrances, 
 spectively. But by section 35, no allowance is to be 
 made in respect of contingent incumbrances on a suc- 
 cession, unless they take effect as an actual burden on 
 the successor's interest ; and by section 36, the Duty on 
 successions is to be calculated without regard to contin- 
 gencies upon the happening of which the property may 
 pass to some other person. 
 
 Sections 32, 39,-40, 41, severally deal with the assess- Sections 
 ment of personalty (m), powers of the Inland Revenue providing for 
 
 r-t ■ ■ , i-r\,-. • 1 . compounding 
 
 (Jommissioners to compound Duties, to receive them m and commut- 
 advance, and commute future Duties. ™s °^ daties, 
 
 the separate 
 
 Section 43 makes provision for the separate assessments assessment 
 
 of property ; sections 45, 46, 47 and 48, are directory as notSTbe 
 
 to the notice required to be given to the Commissioners, gifentothe 
 
 and the nature of the return required, the penalty and sioneraTtte 
 
 mode of proceeding when notice is not given and return ™J.'«'<=i?g °^ 
 
 1 • 1 1 1 c /■ obligation.'), 
 
 made, together with the mode of enforcing these obliga- &:c., &o. 
 tions on the part of executors and administrators. 
 
 Sections 49 and 50 concern the verification of accounts The verifica- 
 
 by the production of books, documents, &c., the right of ti™?*'«=<=''™t3 
 
 •' ■■■ 'JO" and inspection 
 
 (l) See Story's Eq. Jur. §§ 342, But see Cook v. Beynon, L. E. 10 
 
 344. By a recent short Act of Ch. 389. 
 
 Parliament, no purchase made lonA (m) A very recent case illiistrat- 
 
 j?cZe, of reversionary interests, is to ing the provisions of sect. 32 is 
 
 be set aside merely on the ground Gudden v. Cuddm, L. J. IST. C. for 
 
 of undervalue, 31 & 32 Viot. o. 4. Jan. 6, 1877, 220. 
 
634 
 
 WILLS OF PEESOIfAL PROPERTY. 
 
 of book by 
 Commis- 
 
 Entry of Duty 
 in a book. 
 
 Exoneration 
 of bond fide 
 purchasers 
 from Duty. 
 
 Court where 
 action pending 
 to provide for 
 payment of 
 duty out of 
 property imder 
 its controL 
 
 Date and shoi't 
 title of 16 & 17 
 Vict. c. 51. 
 
 Consideration 
 of Sects. 10, 
 18, 21, and 
 42. 
 
 How the 
 "interest of a 
 successor to 
 realty is 
 regarded by 
 the Act. 
 
 the Commissioners to inspect and take copies of public 
 books without a fee, the power of the accountable party 
 to appeal. 
 
 Section 51 enacts that the Commissioners shall, when- 
 ever Duty is paid under the Act, enter the same in a book 
 and give a stamped receipt for the same. 
 
 Every receipt and certificate purporting to be a dis- 
 charge of the whole Duty payable in respect of any succes- 
 sion shall exonerate ^ bond fide purchaser for valuable 
 consideration, and without notice, notwithstanding any 
 suppression or misstatement in the account upon the foot- 
 ing whereof the same may have been assessed. And no 
 bond fide purchasers for valuable consideration under a 
 title not appearing to confer a succession shall be subject 
 to Duty chargeable on such property, by reason of any 
 extrinsic circumstances of which he had no notice at the 
 time of purchase (sect. 52). 
 
 Whenever any suit shall be pending in the High Court 
 of Justice for the administration of any property charge- 
 able with either Legacy or Succession Duty, the Court 
 shall provide for the payment thereof out of any property 
 in its possession or control. 
 
 The remaining sections of the Act, 54 and 55, state 
 respectively, the date on which the Act should come into 
 operation, namely, May 19, 1853, and its short title — 
 " The Succession Duty Act,' 1853." 
 
 There are four sections now left to be noticed, namely 
 the 10th, 18th, 21st, and 42nd. Of these we will consider 
 the 21st, the 18th and 42nd together; and lastly the 10th. 
 
 The interest of every successor — except as in the cases 
 within sections 16, 23, 24, 26 and 27 — in real property, 
 shall be considered to be of the value of an annuity equal 
 to the annual value of such property, after making allow- 
 ances for necessary outgoings (sect. 22), and payable from 
 the date of his becoming entitled thereto in possession, or 
 to the receipt of the income or profits thereof, during the 
 residue of his life, or any less period during which he 
 
OF EXECUTOES AND ADMINISTEATOES. 635 
 
 shall be entitled thereto. This annuity is to be valued How annuity 
 according to the Tables in the Schedule to the Act, and 
 the Duty chargeable thereon is payable by eight equal half- 
 yearly instalments, the first of which is to be paid twelve 
 months next after the successor becomes entitled to the 
 beneficial enjoyment of the property. As to the other 
 seven instalments, these are to be paid half-yearly, the 
 first of them being due six months from the day on which 
 , the original instalment was paid. If, however, the sue- Successor 
 cesser should die before all the instalments have become p^^y jg pa[d 
 due, then any instalments not due at his decease shall 
 cease to be payable, except where the successor having 
 the right to devise a continuing interest in the property 
 exercises his right, in which case the unpaid instalments 
 will form a continuing charge on such interest in exonera- 
 tion of his other property, and shall be payable by the 
 owners for the time being of such interest {n). 
 
 Section 18 deals with the exemptions allowed by the Exemptions 
 
 from Succ6S~ 
 
 Act, and although these have been before referred to, they sion Duty, 
 may be thus more conveniently shown : — 
 
 (a.) Where the whole succession or successions derived 
 from the same predecessor, and passing upon 
 death to any person or persons, shall not amount 
 in money or principal value to £100. The inarket, 
 not the annual, value, is therefore here meant. 
 
 (h.) Where the succession is of less value than £20 in 
 the whole. 
 
 (c.) Money applied to the payment of the Succession 
 Duty according to any trust for that purpose (o). 
 
 (d.) Duty is not payable by any person in respect of a 
 Succession, who, if the same were a Legacy be- 
 queathed to him by the predecessor would be 
 [expressly^ exempted from Legacy Duty. 
 
 (m) See Mr. Hanson's observa- Duty upon his real property is not 
 
 tions on this section, page 301. exempted from Legacy Duty by 
 
 (o) " Money applied by the tes- either Act." Hanson, 295. See 
 
 tator's direction out of his personal cmte, p. 621. 
 estate in payment of Succession 
 
636 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Dnty to te a 
 first charge on 
 property. 
 
 Kates of 
 Legacy and 
 Succession 
 Duty. 
 
 (e.) No person is chargeable with Duty in respect of any 
 interest surrendered by him or extinguished 
 before the time appointed for the commence- 
 ment of this Act. 
 (/.) No person charged with Legacy Duty in respect of 
 property on which such is payable, shall be 
 charged with Succession Duty also. In other 
 words, if he pays one he cannot be called upon 
 to pay the other. 
 By section 42, the Duty imposed by this Act shall be a 
 first charge on the interest of the successor, and of all persons 
 claiming in his right, in all the real and personal property 
 in respect whereof such Duty shall be assessed, while the 
 same remains in the ownership or control of the successor, 
 or of any trustee for him, or of his guardian, committee, or 
 tutor or curator (p), or of the husband of any wife who 
 shall be the successor. The said Duty shall be a debt 
 due to the Crown from the successor, having in the case of 
 real property comprised in any succession, but that only, 
 priority over all other charges and interests created by 
 him. In case the real property is subject to a Power of 
 sale, exchange or partition exercisable with the consent of 
 the successor, or by the latter with another person's con- 
 sent, he may effectually exercise, or authorise the exercise 
 of the Power, and if it be exercised, then Duty is to be 
 charged substitutively upon what may be received in ex- 
 change or the proceeds of a sale, as the case may be, and 
 in the meantime upon all moneys arising from the exercise 
 of such Power, and in all investments of such moneys. 
 
 Finally, we have to notice the 10th section of the Suc- 
 cession Duty Act of 1853, and this declares the rates of 
 Duties which are chargeable on Successions. The pay- 
 ments are made to depend on the value of each succes- 
 sion, and on the degree of blood relationship which exists 
 between the successor and the predecessor, and the sums 
 are precisely the same as those chargeable on legacies under 
 
 ip) As to these terms, see ante, p. 311. 
 
OF EXECUTORS AND ADMINISTilATOES . 637 
 
 55 Geo. 3, c. 184, and which are given in the Schedule to 
 that Act, part iii. It is, therefore, an easy matter to com- Combination 
 bine those tables in order to show at a glance the rates of legacies and 
 Duty payable — so far as persotis are concerned — under si'=<=esaions. 
 both the Legacy and Succession Duty Acts. In the follow- 
 ing arrangement we give the substance of the form set 
 out in the Act of 1853, with the one word " legatee " of 
 the former Act interpolated : — 
 
 1. Where the successor or legatee of any Relationship 
 
 residue or share thereof, shall be the succfior^'or 
 
 lineal issue or lineal ancestor of the ^'^'^^'^ ™der 
 
 an intestacy 
 
 predecessor, he pays . . .1 per cent, regulates the 
 
 2. If he be a brother or sister, or a de- rate of Duty 
 
 . ' payable. 
 
 scendant of a brother or sister . . 3 „ 
 
 3. If an uncle or aunt of the predecessor, or 
 
 a descendant from either . . 5 „ 
 
 4. If a great uncle or great aunt of the pre- 
 
 decessor, or a descendant from either 6 „ 
 
 5. In other cases, or where the legatee or 
 
 successor is a stranger in blood to 
 the predecessor . . . . 10 „ 
 
 And where a person who receives a share of personalty 
 under an intestacy, the same Duty is payable as under a 
 Will or Administration cum testamento anneom. The 
 above statement contains the substance of sect. 10, but in 
 all documents relating to the payment of Duty, the precise 
 words of the Act should be used. Thus, instead of calling 
 a person the wacle of his pi-edecessor, we should term him 
 the brother of the predecessor's father or mother, as the 
 case may be. 
 
 A recent statute, noticed ante, p. 604, n. (s), entitled Intestates' 
 " An Act for the Relief of Widows and Children of Intes- S^enReUef 
 tates where the Personal Estate is of Small Value" (g),pro- Act, 1873. 
 vided as follows : — Where the whole estate of an intestate Act applies 
 shall not exceed in value the sum of £100, his widow, or ^tere property 
 
 . not over the 
 
 any one or more of his children, provided such widow and value of £ioo. 
 
 {q) 36 & 37 Vict. c. 52, extended dren of intestate widows. 
 by 38 & 39 Vict. c. 27, to the chil- 
 
638 
 
 WILLS OF PEESONAL PKOPEETY. 
 
 Procedure. 
 
 Fees payable 
 under the Act. 
 
 Proof of ■ 
 identity and 
 relationship of 
 applicant. 
 
 Power of 
 Kogistrara to 
 administer 
 oaths afld take 
 declarations 
 and aiErma' 
 tions. 
 
 children reside more than three miles from the Registry of 
 the Court of Probate having jurisdiction in the matter (r) 
 — may apply to the Eegistrar of the County Court within 
 the district where the intestate had his fixed place of 
 abode at the time of his death, to fill up the papers neces- 
 sary to lead to a grant of administration. The Registrar 
 must do this, also swear the applicant and attest the exe- 
 cution of the administration bond according to the practice 
 of the Probate Division, and then transmit the papers to 
 the registrar of the Court of Probate having jurisdiction in 
 the matter (s). The latter officer will in due course make 
 out and seal the Letters of Administration and return them 
 by post to the Registrar of the County Court, who will 
 deliver them to the applicant (sect. 1). The only fees 
 payable under this Act are stated in the Schedule 
 thereto, and are as follows : — Where the whole estate 
 does not exceed £20, the sum of five shillings ; where the 
 whole estate exceeds that value, then, in addition to the 
 five shillings, the applicant must pay one shilling for every 
 £10 or fraction of £10, by which the value exceeds £20. 
 
 By section 2, the Registrar of the County Court may 
 require such ptoof as he may think sufficient to establish 
 the identity and relationship of the applicant ; and by 
 section 3, if he has reason to believe that the effects 
 exceed in value £100, he may refuse to proceed until he 
 is satisfied as to their real value. 
 
 Section 4 gives power to the Registrars of County 
 Courts to administer oaths, to take declarations and 
 affi/rmations (t), and to exercise any other powers which 
 be exercised by the Probate Division. Section 5 
 
 can 
 
 refers to the making of rules, orders, and tables of fees, 
 
 (r) As this Act extends to Ire- 
 land, the term " Court of Probate" 
 shall he construed to mean the 
 " Court of Probate in Dublin," and 
 the term " Eegistrar of the County 
 Court" will mean the Eegistrar of 
 the " Civil Bill Court," that is the 
 
 Irish County Court. For the prac- 
 tice in the latter tribunal, see 27 & 
 28 Vict. c. 99 ; 28 & 29 Vict. c. 1 ; 
 37 & 38 Vict. u. 66. 
 
 (s) See last note. 
 
 (<) See n. (&), aiUe, p. 600. 
 
OF EXECUTORS AND ADMINISTEATOES. 639 
 
 requisite for carrjdng the Act into operation, but the total 
 amount must not in any case exceed the sums mentioned 
 in the schedule. Section 6 provides that nothing in the 
 Act shall be construed to affect any Duty now payable on 
 Letters of Administration. 
 
 By the statute 38 & 39 Vict. c. 27, and which is to be Intestates' 
 read and constnied with the 36 & 37 Vict. c. 52, where children ^ 
 the whole estate of an intestate widow does not exceed in 5®^'^^ ^°*' 
 
 liixtension, 
 
 value the sum of £100, any one or more of her children 1875. 
 may, under the same circumstances as to residence as 
 before, apply to the Kegistrar of the County Court within 
 the district of her fixed residence, and the rest of the pro- 
 cedure under the 36 & 37 Vict. c. 52, shall be followed, 
 and the same fees paid by the applicant as there pro- 
 vided. 
 
 We must now proceed to an examination of those three Resumption of 
 cases concerning the rights of executors under certain '^"l^ Vn°o™ 
 
 ° . ° off at p. 112, 
 
 circumstances, mentioned at page 112, and the con- as to the 
 sideration of which we postponed as coming more ^f \^^^ ^J^^ ^ 
 properly within the scope of the present chapter (m). We and personal 
 
 ,. . I, ,, 1/., •• representatives 
 
 were discussing some ot the general features appertaining to Fixtures, 
 to the rules of law on Fixtures. What we have now to 
 investigate are the rights of executors and administrators 
 when the contest for Fixtures lies between the executor 
 or administrator : — 
 
 1st. Of a tenant in fee simple, his heir or devisee ; 
 
 2nd. Of a tenant in tail, his successor, the reversioner or 
 remainderman of the estate ; or 
 
 3rd. Of a tenant for ■ life, the reversioner or remainde- 
 > man. 
 
 With regard to the first of these points, it may be ob- True rule of 
 served that, but for the ambiguous character which the la^concermng 
 
 ° right of heir 
 
 (m) In like manner it is proposed Division. The mode of distribut- ^ 
 to leave such subjects as grants of ing an intestate's estate, the mles 
 probate, &c., affinity, and consan- as to taking per capita and per 
 guinity, for notice in our next sfe'jyes, &c., &c., will form the sub- 
 chapter, namely, that concerning ject of the concluding chapter of 
 the functions of the High Court of this book. 
 Justice as exercised in its Probate , 
 
640 
 
 WILLS OP PEESONAL PROPERTY. 
 
 fee to Fixtures 
 as against his 
 executor. 
 
 Kule when 
 reiaxed. 
 
 Cause of tie 
 confusion as 
 to the general 
 applicability 
 of the rule as 
 between heir 
 and executor. 
 
 The cider-mill 
 case. 
 
 word " Fixture " has been allowed to acquire (v), together 
 with a disposition on the part of our Courts in former 
 times to depart from a certain and salutary rule of law, 
 and so create confusion, there could scarcely have been 
 any necessity for considering at all whether the heir or 
 the executor should have the fixtures put up by a deceased 
 owner in fee. Taking the term " Fixture " in its true 
 and proper sense of something annexed to, or closely con- 
 nected with the freehold, the true rule of law has always 
 been, that whatever is so fixed to the freehold becomes 
 part of it, and cannot be moved. This general rule, al- 
 though it has been properly relaxed ill favour of tenants, 
 as against landlords, and to some extent as between 
 tenants for life or in tail as against the reversioner and 
 remainderman, yet it ought never to have been, and 
 perhaps, as a matter of absolute fact, really never has 
 been modified, as between the heir and executor (x). We 
 say this, because the chief case which appears to depart 
 from the established rule, and which was the first to cause 
 confusion, has been pronounced to be so indistinctly 
 reported as to be next to worthless as , an authority, and 
 also, if correctly stated, to be so grave a departure from a 
 sound rule of law, that it could not be followed {y). 
 
 (v) See ante, pp. 88, 89. Under 
 the Bills of Sale Act, 17 & 18 Vict, 
 c. 36, although " Fixtures'' are 
 there stated to he "personal chat- 
 tels ; " this is so, however, only for 
 the purposes of this Act. See per 
 Lord Chelmsford, in Meux v. Jacob, 
 L. E. 7 E. & I. App. 481 ; U L. J. 
 Ch. 481, a case of mortgage in fee 
 in which trade fixtures were held 
 to be included in the mortgage, 
 whether on the property before or 
 after the mortgage. 
 
 (x) The above rule is so stated to 
 be the correct one of law, in BuUer's 
 Nisi Prius, 6th ed. 34 (1793), but it 
 was so long before then. Questions 
 as to the respective claims of heir 
 
 and ancestor as to things set up by 
 the ancestor on his own land, were 
 before the Courts as far back as the 
 reign of Henry VIL Amos & 
 Ferrard on Fixtures, 152, 2nd ed. 
 (1847). The views ■ expressed by 
 old writers on the subject and which 
 are undoubtedly correct, are given 
 in this work at pp. 164 and 155, 
 also in 1 Wms. Exors. pt. 2, bk. 2, 
 ch. 2, § 3, 732. 
 
 (y) This case, known as "the 
 cider-mill case," is, in reality, not 
 reported at all, but was mentioned 
 by counsel in Lawton v. Lawton, 
 3 Atk. 14. According to the state- 
 ment made, a cider-mill had been 
 erected by the owner of land, and 
 
OF EXECUTORS AND ADMINISTEATORS. 641 
 
 The case cited below, that, of Fisher v. Dixon, rescued ^"'^ of law 
 the law on this subject from the state of doubt into which puJier v5 
 it had fallen by reason of the " cider-mill " decision, and -^*^«- 
 others founded on it, and the learned lords who decided 
 the former were unanimous in their opinion that, not even 
 in favour of trade, could the right of the heir to fixtures 
 put up by the owner and undisposed of by him be 
 disturbed. 
 
 The facts in Fisher v. Dixon were these : — The de- Facts, he., in 
 ceased, J. Dixon, was the owner of coal and iron mines, Dixon.^' 
 some portion of which belonged to him in fee. A con- 
 siderable amount of machinery had been erected by him 
 for the purpose of carrying on his business, and after his 
 death, it was contended that this machinery was not 
 heritable but movable property, and so belonged to the 
 executors (z). The Court of Session in Scotland decided Decision of 
 that the machinery formed heritable property, whereupon ge^on 
 the executors appealed to the House of Lords, On their Arguments 
 behalf it was contended that as the machinery had been °? appeal to 
 
 . •' the House of 
 
 used by the testator in cai-rymg on his trade, it fell within Lords. 
 those principles of law, which in favour of trade cause such 
 things, though annexed to the soil, to be regarded as 
 personal property. The old cases, especially that of the 
 
 after his death his executor claimed useless — assuming the huilding to 
 
 it from the heir. Comyns, C. B., have been fixed to the freehold. 
 
 in an action for trover, pronounced The above case of Lawton v. Law- 
 
 the building to be personal estate, ton, must not be confounded with 
 
 and directed the jury to find for the Lawton v. Salmon, mentioned in a 
 
 executor. Strange to say, this note to Fitzherhert v. Shaw, 1 H. 
 
 verbally-reported case appears to Bl. 259. The decision of Lord 
 
 have influenced Lord Hardwicke in Mansfield in this case is one of 
 
 Lawton v. Lawton, in Dudley v. authority which the former is 
 
 Warde, Amb. 114, and was recog- not. 
 
 nized by Lord EUenborough in («) The case had its origin in 
 
 Elwes V. Mawe, 3 East, 54 ; 2 Smith, Scotland.in thelaw of which country 
 
 L. C. In the great case of Fisher the terms "heritable " and "mov- 
 
 V. Dixon, 12 CI. & F. 312, decided able " as applied to property are, 
 
 by the House of Lords in 1846, the generally speaking, synonymous 
 
 old rule of law was afiirmed and with our terms real and personal, 
 the "cider-mill case" pronounced 
 
6i2 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Decision of 
 the House of 
 Lords. 
 
 The principle 
 as to 
 
 relaxation of 
 the rule in 
 favour of trade 
 does not apply 
 to cases where 
 the owners had 
 absolute power 
 over the land 
 and everything 
 thereon. 
 
 Machinery 
 though 
 generally per- 
 sonal property 
 is in such cases 
 part of the 
 freehold. 
 
 Principle 
 re-afiirnied in 
 Fisher v. 
 Dixon is 
 applicable as 
 between mort- 
 gagees in fee 
 and assignees 
 
 cider-mill, were also urged in support of the appellants' 
 contention. The respondents argued that this principle 
 as to the paramount importance of trade applied only 
 to cases where the erections were merely for the pur- 
 poses of trade, and not where they were put up for the 
 better enjoyment of the land, as was the case here. They 
 relied on Lawton v. Salmon (a), to show the rigidity ot 
 the rule in favour of the heir as against the executor in 
 these cases, and the House of Lords, as we have seen, 
 adopted these views in their entirety. 
 
 " The principle upon which a departure has been made 
 from the old rule in favour of trade," says Lord Cottenham, 
 " appears to me to have no application to the present case. 
 The 'individual who erected the machinery was the owner 
 of the land, and of the personal property which he 
 erected and employed in carrying on the works : he might 
 have done what he liked with it : he might have disposed 
 of the machinery ; he might have separated them again 
 ... It was quite unnecessary to seek to establish any 
 such rule in favour of trade as applicable here, the whole 
 being entirely under the control of the person who erected 
 the machinery." Although the species of property in 
 question is in its nature generally personal property, yet 
 whether it can or cannot be easily removed is not the 
 question in cases between heir and executor, either in 
 regard to machinery or other erections on land put there- 
 on for the purposes of better enjoying it. The whole 
 having belonged to the owner of the fee who had the 
 power to dispose of it in any way he thought proper, un- 
 less such power be exercised by him, the whole must go 
 to the heir. 
 
 Fisher v. Dixon thus affirms the old rule of law as to 
 the right of an heir as against a personal representative 
 to whatever things the ancestor has annexed to his free- 
 hold. The same principle is applicable also to mort- 
 gages in fee where the mortgagor becomes bankrupt and 
 (a) Ante, n. {y), supra. 
 
OF EXECUTOES AIST) ADMINISTRATORS. 64:} 
 
 the. assignees in bankruptcy claim fixtures from the i° bankruptcy 
 
 , of the owners. 
 
 mortgagees. 
 
 This will be seen from the case of Mather v. Fraser (6). iiinstrative 
 There, A. and B., two partnere, mortgaged their land ^Praser'^''^^ 
 of which they were seised in fee, together with a quantity 
 of fixed machiaery thereon. They subsequently failed, 
 and the mortgagee and assignees having respectively 
 claimed the machinery. Wood, V.-G, held that the mort- 
 gagees were alone entitled to it. 
 
 As observed by Lord Cottenham in his judgment in The principle 
 Fisher v. Dixon, the principle there re-affirmed in favour of i^;^ may be 
 
 . -' -^ camea farther 
 
 of the heir as against the executor " would probably go a than it was in 
 great deal further" than it was in that particular case x^^m^" 
 carried. It is presumed that his lordship thereby meant 
 that it might be made to embrace not only machinery and 
 similar appliances put up by an owner in fee, for purposes 
 of trade, but other things added to his property for the 
 better enjoyment of it in other ways, as in the case of 
 Domestic or Ornamental Fixtures. If we are right in Probably it 
 attributing this signification to his Lordship's words, we "^y ^appli«d 
 may also state that judging from the decisions pronounced Domestic or 
 before the date of Fisher v. Dixon, it may be stated that pj^^^ 
 as between an heir and the ancestor's executor, the 
 tendency seems to be to favour the former, not only in 
 cases of fixtures Kke machinery, &c., but where they are 
 found in a house in the shape of articles of utility and 
 ornamentation. The case of Win7i v. Ingilby (c), decided sheriff cannot 
 by the Court of King's Bench, in 1822, is in point, at any ™'*^'' a A/«- 
 
 T .. „, ,.. seize in execu- 
 
 rate to snow the recognition oi the general prmciple m tion things 
 favour of the heir. There the defendant, who was a High ^^o^*^*j 
 Sheriff, having seized under afi. fa. certain fixtures, con- which go to 
 
 the heir. 
 
 (6) 2 K. & J. 536 ; 25 L. J. by the owner thereof does not re- 
 
 Ch. 361, the judgt. in which is re- quire to be registered as a BiU of 
 
 garded as setting forth the true Sale, nnder the 17 & 18 Vict. c. 36, 
 
 principles applicable to cases of the the Bills of Sale Act. See also 
 
 class we are now considering. It Mevx v. Jacob, ante, n. (v), p. 
 
 was held also that a mortgage of trade 639. 
 
 fixtures together with the freehold (c) 5 B. & Aid. 625. 
 
 T T 2 
 
644 
 
 WILLS OF PERSONAL PROPERTY. 
 
 sisting of ovens, ranges, &c., in a house built upon the 
 plaintif's freehold, the plaintiff brought an action against 
 him for trespass and obtained a verdict in his favour. 
 The defendant moved to have it entered for himself, but 
 the Court decided that the verdict must stand, because 
 the Fixtures being such as would have gone to the heir 
 and not to the executor, they could not be taken in 
 execution. Here, the house where they were fixed was 
 the freehold of the plaintiff, which distinguishes this 
 case from those cited (d) by the counsel for the de- 
 fendant, 
 itive With regard to the right of the executor — ^that is as- 
 
 nghts of heir gi^Qiing him to have any — as against the heir to Ornamental 
 
 and executor " . 
 
 to Ornamental Fixtures, here again, we are confronted with the ambiguity 
 IX iires. ^£ ^j^^ term itself. But employing the word in its strict 
 
 sense, can the executor or administrator walk into a house, 
 proceed to disfigure or wreck the fabric thereof, under the 
 pretence that what he claims to remove and take away 
 forms part of the personal estate of the deceased owner ? 
 Of course the latter could have authorised any person 
 during his lifetime, or after his death, to do so, but in the 
 absence of any document, has an executor, &c., such 
 power ? This is the simple question, and the preposterous 
 character of the idea involved therein seems to form the 
 best general answer which can be given to it. At the 
 same time, the question is susceptible of more close 
 examination. If the reader will turn to p. 642, and read 
 that portion of Lord Cottenham's judgment in Fisher v. 
 
 Principle of 
 Fisher v. 
 Dixon will 
 
 (d) These according to the report 
 ■were Elwes v. Mawe, 3 East. 38 ; 
 S. C. 2 Smith, L. C. and Ex parte 
 Quincey, 1 Atk. 477. 
 
 Note.— The above case of Winn 
 V. Ingilby, is still an authority for 
 the point which it decides, for al- 
 though the Statute 1 & 2 Vict. c. 
 110, extended the operation of the 
 writs of elegit and fieri facias 
 respectively (see sects. 11, 12), yet 
 
 the Act does not authorise a sheriff 
 to seize fixtures which go to the 
 heir and not to the executor, even 
 when severed by a defaulting tenant, 
 and he cannot remove them. See 
 1 Chitty's Arohbold by Prentice, 
 12th ed. 655., where other cases are 
 cited to show the inability of a 
 sheriff to sell things fixed to the 
 freehold and which go to the heir. 
 
Of EXECUTORS AND ADMINISTEATOES. 645 
 
 Bixon, which is there italicised, it will be seen that his apply to all 
 lordship attributes great importance to the fact of the fixtures. 
 absolute ownership of the deceased person over the land 
 itself and everything thereon. Now, in the extract re- 
 ferred to above if, for the words which are not printed in 
 italics, namely, " machinery '' and " erected and employed 
 in carrying on the works," we substitute respectively the 
 words " house" and " placed there for the better enjoyment 
 thereof," we shall see that the principle re-enunciated in 
 Fisher v. Dixon is applicable to domestic and ornamental 
 fixtures. Thus, in a work of high authority on this 
 subject (e), we find it stated that, " the observations of the General right 
 judges in the several cases (/) which have been referred picture's as ° 
 to, must be considered as restrictive of any general right against heir 
 to fixtures on the part of the executor ; and indeed it the decisions. 
 would seem that much of the reasoning upon which the 
 decision in the case of Fisher v. Dixon was founded, 
 applies to the case of annexations made by the owner of 
 the fee for purposes of ornament or convenience, as Fixtures put 
 strongly as to the case of annexations by him for purposes oraament or 
 of trade. It may at all events be laid down as a rule in conrenience. 
 all cases, that if an article put up for ornament or con- 
 venience is so annexed to the freehold that the inheritance 
 would be greatly deteriorated by its severance, it must be 
 considered as an essential part of the freehold, and the 
 executor will not be entitled to take it as part of the 
 personal estate." 
 
 But the amount of damage likely to accrue to the in- The amount 
 heritance by the severance of Fixtures therefrom, is not ukelTto^bB 
 
 (e) Amos & Ferrard on Fixtures, tions of the kind we are discussing, 
 
 2nd ed. 188 (1847). namely those as to the respective 
 
 (/) These were Sguier v. Mayer, claims of heirs and executors, while 
 
 Freem. 249 (1701) ; Beck v. Rebow, he cited the third merely to show 
 
 1 P. Wms. 93 (1706) ; and Harvey how the rights of these parties may 
 
 T. Harvey, 2 Str. 1141 (1741). The be varied by a written agreement or 
 
 two former cases are considered by other document. See his work on 
 
 Mr. Archibald Brown to be useless Fixtures, 3rd ed. §§ 209, 210, 213, 
 
 as authorities for dtetermining ques- and 214, pp. 188-190. 
 
646 
 
 WILLS Of PERSONAL PEOPERTY. 
 
 done to the 
 freehold not 
 now the test 
 as to the right 
 to remove 
 Fixtures. 
 
 True criterion 
 as to the right. 
 
 How far the 
 law is settled 
 on this sub- 
 ject. 
 
 Right of 
 executor as 
 against de- 
 visee. 
 
 now the true test of the ability of the executor to remove 
 them, for it has been laid down in the comparatively 
 recent case of D'Eyncourt v. Gregory (g), at least as 
 between tenant for life and remainderman, that the true 
 criterion is found in the consideration whether the article 
 is or is not part of the building from which it is pro- 
 posed to remove it. This will of course depend upon 
 circumstances, and probably we may accept the state- 
 ment contained in the last edition of' Williams on 
 Executors Qi), that notwithstanding all these decisions 
 the law appears to be by no means clearly settled respect- 
 ing the right of the executor of tenant in fee to what 
 are called Fixtures, set up for ornament or domestic 
 convenience. 
 
 At the same time, unless the decisions we have noticed 
 are wholly erroneous, we may venture to assert that the 
 risrht of the heir to what are Fixtures in the true sense 
 of the term, whether put up by the owner for trade pur- 
 poses or for convenience or ornament, is really settled. 
 Further, that an executor would find it a very difficult 
 matter to maintain his claim to so-called Fixtures of any 
 kind against the heir in cases where it is not perfectly clear 
 that the latter is outside the operation of that rule of law 
 which is so distinctly in favour of the latter. 
 
 Having thus examined the respective positions of the 
 heir and executor of an owner in fee, where each lays claim 
 to his fixtures, we must now see how an executor and a 
 devisee stand towards each other in this respect. We have 
 stated ante, at page 88, what the devisee's rights are, 
 generally, as to the accessories of land devised to him, 
 and we there say that a devisee of land is on the same 
 footing — that is qud the benefit he receives — as an heir 
 who comes into possession by the act of the law. In one 
 
 ig) L. R. 3 Eq. 382 ; 36 L. J. 
 Ch. 107, to be referred to again in 
 our next proposition. 
 
 (h) Vol. L pt. 2, bk. 2, ch. 
 § 3, 739. 
 
OP EXECUTORS AND ADMINISTRATORS. 647 
 
 respect, however, a devisee is in a better position than the Devisee in a 
 heir, and that is in regard to Emblements; for if the thanh^r^iu™ 
 owner of land dies intestate, though the land itself de- o"® respect. 
 scends to his heir, the emblements will belong to his per- 
 sonal representative (i). But if the owner devises his 
 land, the devisee, in the absence of any other express dis- 
 position of the growing crops, will be entitled to th^e as 
 against the personal representative. Of this singular dis- 
 tinction in favour of a devisee there have been several 
 attempted explanations ofi'ere'd. It would seem that these 
 are not to be relied upon {k), but this matter is not of 
 much importance or interest. 
 
 The general rule then, as to a devisee's right may be General mie as 
 thus further stated :— He will be entitled to all articles *? ^^visee's 
 
 right. 
 
 actually or constructively affixed to lands or buildings de- 
 vised, whether there before or after the date of the Will 
 and which are essential to the proper and full enjoyment 
 of the property. As to things which are not affixed so as 
 to form part of the freehold to which they are attached 
 the case is different, for if articles, say in a house, exist 
 there in such a way as not to be incorporated with the 
 freehold, then they are only chattels which the devisee 
 cannot take, for they will form what are called Executor's " Executor's 
 Fixtures — the term being here employed in its secondary fi^'t^res." 
 and inaccurate sense (l). 
 
 The position contained in the latter part of the above sech v. R):bow 
 statement mav be deduced from the case of Seek v. f° authority 
 
 . ^ here. 
 
 Rehow (m), which although not one exactly concerning a 
 
 devise, is an analogous authority to assist us here. The Pacts in that 
 
 plaintiff Beck had married the daughter of C, and in con- °*^^- 
 
 (t) The same rule holds also as (i) See Hargrave's note to Co. 
 
 between representatives of tenant Litt. 556 (N. 365), cited in Amos 
 
 in tail or for life, for they are en- & Fer. Fixtures, 212 n. (c). 
 titled to emblements as against the (V) Read Ookgrave v. Dias Santos, 
 
 remainder-man or reversioner of the 2 B. & C. 76. 
 property. As to emblements, see (to) 1 P. "Wms. 93, and see ante, 
 
 ante, pp. 83, 119. n. (/) p. 645. 
 
648 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Judgment. 
 
 Devisee of a 
 touse not 
 necessarily 
 entitled to 
 furniture, &c. 
 
 Testator should 
 specify nomin- 
 atim Fixtures 
 •which he 
 wishes to 
 bequeath 
 away. 
 
 Consideration 
 of the second 
 proposition at 
 p. 639. 
 
 Position of a 
 tenant in tail. 
 
 sideration of the marriage and a settlement made by Beck, 
 C. covenanted to settle a house in London on the plaintiff 
 and his wife and their children, and to grant to the former 
 " all the pictures upon the staircase, over the doors and 
 chimney-pieces, and all things fixed to the freehold of the 
 messuage." C. having made Eebow his executor, and 
 also devised the house to him in trust to settle it accord- 
 ing to the marriage articles, died. Rebow then proceeded 
 to take away all the pictures above mentioned, and like- 
 wise some pier-glasses, hangings and chimney-glasses. 
 These " the plaintiff alleged were as wainscot," and he 
 prayed the court to direct Eebow to account for them. 
 Lord Keeper Cowper held that hangings and looking- 
 glasses were only matter of ornament and furniture, and 
 not to be regarded as part of the house or freehold, 
 but were removable by the lessee. " From this decision 
 it might perhaps be inferred that such fixtures would not 
 be comprised under a corresponding devise in a Will " {n), 
 and there can be no doubt that the inference would be a per- 
 fectly just one, as we have before indicated. It may then be 
 affirmed that a devise of a house in fee will not necessarily 
 include furniture and other things which do not form part 
 of the fabric of the building. Of course here, as in other 
 cases, the intention of the testator to be gathered from 
 the language of his Will, where one exists, must form the 
 chief guide for determining the destination of his pro- 
 perty (o), and if a man wishes to expressly devise Fixtures 
 in separation from the freehold he should take care to 
 specify the article in question by name. 
 
 2. We now come to the consideration of the relative 
 rights of the personal representatives of a deceased tenant 
 in tail, his successor the remainder-man or reversioner. 
 
 A tenant in tail being the owner of a particular estate, 
 the power which he possesses over it exists only during his 
 life. Like a tenant for life he has no power to devise it 
 
 (») Amos & Fer. Fixtures, 247. 
 
 (o) See ante, pp. 87, 88. 
 
OP EXECUTORS AND ADMINISTEATOES. 649 
 
 away, but unlike a tenant for life he has in his lifetime as 
 much power to commit waste on the estate as though he 
 were owner in fee simple ; accordingly, his ability to re- 
 move Kxtures during his life is absolute by virtue of his 
 ownership, and the law of Fixtures does not concern him. 
 As between a tenant in tail and his successor, there cannot 
 of course be the same relationship existing as between an 
 owner in fee and his heir, for whereas the latter takes an 
 inheritance by descent, on the supposition — among others — 
 that he is the same person as his ancestor (p), the former 
 takes his estate by reason of the statute de Bonis (q), and of 
 the nature of the estate created, or as it is technically said, 
 per formam doni. From these well-known principles, and 
 which are important for the present purpose, we are able 
 to proceed to the following rule, that wherever a person Rule concern- 
 has a devisable interest in a house, &c., he may devise the to^e'^uTth^' 
 incidents annexed thereto either with or in separation things in sepa- 
 from, the freehold : if, on the other hand, he cannot devise the freehoTd. 
 the estate, the things which are annexed to it are not de- 
 visable. Accordingly, as neither a tenant in tail nor a 
 tenant for life can devise his estate, so he cannot devise 
 its accessories, unless they are such as do not actually form 
 part of the freehold (r). 
 
 If A., the owner of a fee simple estate, gives an estate to Kespeotive 
 
 positions of 
 
 ip) See ante, p. 71. doubted, and in Ex parte Saglish, 
 
 {q) 13 Ed. 1. c. 1. &c., it was wholly dissented from, 
 
 (r) Shep. Touch. 469, 470 ; Eer- while in both, BegUe v. Fenwick, 
 
 lakenden's Case, i Co. Eep. 62. The decided by Malins, V.-C, 24 L. I. 
 
 following cases may be perused 59 was followed. The above cases 
 
 in confirmation of the principle were between mortgagor and mort- 
 
 stated in the text. Eolland v. gagee, the two latter being con- 
 
 !on, L. R. 7 C. P. 328 ; 41 nected with the Bills of Sale Act, 
 
 L. J. C. P. 146 ; Hawtrey v. But- 1854, 17 & 18 Vict. c. 36, but they 
 
 lin, L. R. 8 Q. B. 183, 290 ; 42 L. will all be found to support the 
 
 J. Q. B. 163 ; Ex parte Daglish, principle stated in the text, while 
 
 Be Wilde, L. R. 8 Ch. 1072 ; 42 the former shows Fixtures to be so 
 
 L. J. Bankr. 102, judgt. of James, far incorporated with the fee as to 
 
 L. J. In Hawtrey y. Butlin, the pass by a mortgage thereof to the 
 
 case of Boyd v. Shorroek, L. R. 5 mortgagee who may hold them 
 
 Eq. 72; 37 L. J. Ch. 144, was against a trustee in bankruptcy. 
 
650 
 
 WILLS OS' PEESONAL PEOPERTY. 
 
 reversionorand 
 
 Temainder- 
 
 man. 
 
 Executor of 
 tenant in tail 
 in no tetter 
 position than 
 executor of 
 heir in fee. 
 
 Different posi- 
 tion of exe- 
 cutor when he 
 is opposed to 
 the remainder- 
 man or rever- 
 sioner. 
 
 Dudley v. 
 Warde, 
 
 B., whether for life or in possession, and the heirs of his 
 body, this will create an estate tail in B, which will de- 
 volve upon his issue so long as any exist and the entail is 
 not barred. But when his issue fails and the entail has not 
 been barred, the estate will revert either to the grantor or 
 to his heir. The person then to whom the fee ultimately 
 comes back — supposing this ever to happen —by reason of 
 the failure of B.'s issue, is the reversioner. If, however, 
 A. in his grant had provided that on failure of B.'s issue 
 the estate should go to C, the latter would, in the event 
 of his taking it, be the remainder-man. 
 
 Such being the case, what then would be the right of 
 the executor of B. as against the heir, reversioner or re- 
 mainder-man ? 
 
 We have already seen how limited the power of the 
 personal representative is against the heir in fee to main- 
 tain a claim for Fixtures, and we venture to assert here that 
 the executor 'of a tenant in tail who leaves issue cannot 
 possibly be, with regard to the same claim as against the 
 heir in tail, in a better position than the executor of a 
 tenant in fee. Why should he ? The only reason which, 
 as far as we are aware, that can be suggested is because 
 the heir takes per forTnam doni ; but surely, unless we 
 are to allow a distinction tantamount to an absurdity to 
 prevail, this circumstance could not militate against the 
 right of the heir in tail to take his inheritance with all that 
 is affixed thereto just as would the heir in fee. 
 
 So much as to the heir, but it has been truly stated 
 that, "the right of the executor may vary according as it 
 is opposed to that of the heir in tail, or to that of the re- 
 mainder-man and reversioner" and this variation is 
 settled to be on the side of the personal representative, and 
 especially in favour of trade. Lord Hardwicke's judgment 
 in Dudley v. Warde (r) is an authority for this statement 
 and the principles there enunciated have always been 
 acted upon since, in cases to which they are applicable. 
 
 (r) Amb. 114. 
 
or EXECUTORS AND ADMINISTRATORS. 651 
 
 The facts there, according to the report were these : — 
 William, Earl Dudley, died seised of a colliery on which 
 were four fire engines, three of which had been erected 
 by his father, who was tenant in tail of the estate 
 under a settlement, and the fourth had been erected by 
 Earl William himself It does not appear whether the 
 son was tenant for life or in tail, but for present purposes 
 we may assume him to have been the latter or either. 
 Lord Warde, the defendant in the case, was remainder-man 
 of the estate in question, and against him the administra- 
 tor of Earl William filed a bill in Chancery to have the 
 four engines delivered up as part of the deceased Earl's 
 personal estate. The arguments in this case are not re- 
 ported, but their nature may be inferred from the judg- 
 ment. Two questions here arose, first as to the general 
 rights of representatives in cases like the present ; second 
 as to whether, supposing the administrator could claim the 
 one engine put up by the deceased earl William, he could 
 also claim the others which had been put up by the earl's 
 father. 
 
 Lord Hardwicke decided that these engines might have Judgment in 
 been removed by a tenant as against his landlord's claim, pp^^^ ^' 
 because they had been put up for purposes of trade, and 
 that although the right of a personal representative of 
 tenant for life or in tail against a reversioner or remain- 
 der-man is not so strong as that of a tenant against his 
 landlord in this respect, "yet," said his lordship, "the same 
 reason governs it; and if tenant for life erects such an engine 
 
 the question is, whether [it is] part of the real or 
 
 personal estate ? If it is so in the case of tenant for life. 
 Query, how would it be in case of tenant in tail ? Tenant 
 in tail has but a particular estate, though somewhat higher 
 than tenant for life. In the reason of the thing there is 
 no material difference ; the determinations have been 
 from consideration of the benefit of trade. A colliery is 
 not only an enjoyment of the estate, but in part carrying 
 on a trade. The reason of emblements going to the exe- 
 
652 
 
 WILLS OF PERSONAL PKOPERTY, 
 
 Reason of tbe 
 decision in 
 the case. 
 
 How position 
 of tenant 
 in tail differs 
 from that of 
 tenant for 
 life. 
 
 Position of a 
 tenant for life 
 in regard to 
 Fixtures other 
 than those 
 put up for 
 trade pui'poses. 
 
 cutor of a particular tenant holds here, to encourage agri- 
 culture. Suppose a man of indifferent health, he would 
 not erect such an engine at a vast expense, unless it would 
 go to his family." 
 
 As to the second question. Lord Hardwicke decided that 
 the administrator was entitled only to the engine which had 
 been put up by the person whom he represented. That 
 portion of the report which deals with the decision on the 
 second question is somewhat confused, but it appears that 
 the other three engines had been given up by the exe- 
 cutrix of Earl William's father, not to the intestate him- 
 self, but with the object that they should form part of the 
 inheritance. 
 
 Now, in this case, it is obvious that the ratio decidendi 
 was founded upon the particular principle of giving pro- 
 tection and encouragement to trade, but on no other, and 
 Lord Hardwicke also appears to regard tenants in tail and 
 tenants for life as being on the same footing, under circum- 
 stances like those in Dudley v. Warde. But how would it 
 be as to other kinds of Fixtures ? Now, it is clear that the 
 position of a tenant for life is really very different from 
 that of a tenant in tail. The former knows for certain, 
 that on his death, his estate will revert to the grantor or go 
 elsewhere in remainder. It may possibly by the limita- 
 tions of the grant devolve upon his own son for life, and 
 on Ms son too, but if there is no provision to this effect, 
 then the estate leaves the life tenant and his family. But 
 with regard to a tenant in tail, he knows that in the event 
 of his leaving issue, the estate will continue as an inheri- 
 tance in his family so long as he has descendants to repre- 
 sent him. If then a tenant for life affixes things to the free- 
 hold which do not appertain to the carrying on of trade,know- 
 ing full well that his estate may determine immediately 
 after doing so, what is his position ? We take it to be this, 
 that he thereby brings himself within the operation of that 
 rule which embodies the primd facie presumption of law 
 that he who builds on the land of another person inteuds 
 
OP EXECUTORS AND ADMINISTRATORS. 653 
 
 to benefit the inheritance alone (s). But is the same true Whether 
 of a tenant in tail, who when he annexes things to his freer ^^^^ a^me' * 
 hold, may have issue living, and yet nevertheless may die footing as 
 without an heir, so as ta- cause his estate to terminate? in this respect. 
 In each case the tenant is not absolute master of the pro- ^."i'?*^ p/ 
 
 ^ . simuanty be- 
 
 perty, and each is aware of the precarious nature of his tween the two 
 ownership, and although it is clear that a tenant in tail ™^°'''^^- 
 has on his side the greater probability — especially in a case 
 similar to the one we put — of his estate enduring, yet it ap- Both within 
 pears that by reason of the uncertainty as to the continuance ^J'® ^""P® °^ 
 
 „,,.,. . ., . .the pnmd 
 
 of each kind of estate, a tenant m tail is as much subject facie pre- 
 to the primd /acie presumption above mentioned as a threffeotof*" 
 tenant for life. building on 
 
 Another diflference observable between the position of a ers n . 
 life tenant and a tenant in tail is that previously adverted 
 to. The former cannot, even during his life, remove things Another differ- 
 incorporated with the freehold, and notwithstanding that position 0^" 
 they may have been put up by himself, unless his grant be tenant in tail 
 without impeachment of waste, in which case he may still 
 be restrained from committing waste of an outrageous 
 character. But whatever his executor may claim on 
 behalf of his personal estate, those things tenant for life 
 may in his own lifetime remove. And if he has severed 
 them from the freehold, they will, unless they are Trade 
 Fixtures, still belong to it and form part of the estate, as 
 between his representatives and the remainder-man or 
 reversioner. Tenant in tail, on the other hand, can 
 remove such things himself, but like tenant for life cannot 
 transmit the right to do so to his representative. If, 
 
 (s) Here particularly read the tached only by its own weight, yet 
 
 jndgt. of the Exchequer Chamber if the intention was to make it part 
 
 in Scotland v. Hodgson, L. E. 7 C. of the freehold, it becomes so. If 
 
 P. 328 ; 41 L. J. C. P. 146, affirming the article be more firmly affixed, 
 
 Longbottom v. Berry, L. E. 5. Q. B. but the intention was not to make 
 
 123 ; 39 L. J. Q. B. 37. The it part of the freehold, then it does 
 
 whole appears to depend on inten- not become such, and the onus will 
 
 tion and how the article is annexed lie on those who contend that the 
 
 to the freehold. If the article is at- thing is a chattel. 
 
634 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Representative 
 of tenant in 
 tail or for life 
 in a position 
 analogous to 
 that of ordi- 
 nary tenant's 
 representatiye 
 as regards 
 Domestic and 
 Ornamental 
 Fixtures. 
 
 Lord Hard- 
 wioke's opinion 
 on the point. 
 
 however, they are found at his death disannexed from the 
 freehold, then they will belong to his representative as 
 chattels forming part of his personal estate. This will d 
 fortiori be so if they are trade Fixtures, but in the case of 
 tenant in tail they would be so even if they were Fixtures 
 of any other kind whatsoever. In short, as before in- 
 dicated, while tenant for life can remove in his lifetime 
 things which he has put up, only by virtue of the law of 
 Fixtures, tenant in tail, like owner in fee, may disannex 
 Fixtures independently of the law concerning these, and 
 wholly by reason of his power as tenant in tail (t). 
 
 It appears that the representatives of a tenant in tail 
 or for life in regard to the remainder-man or reversioner 
 while not occupying a precisely analogous position to those 
 of an ordinary tenant as against the landlord, yet that for 
 practical purposes, there seems no reason why any dis- 
 tinction should be made between these parties in regard 
 to their claims to Domestic or Ornamental Fixtures. " For 
 it cannot, upon authority, be affirmed of any specific 
 article that it is removable as between landlord and 
 tenant, but that it is not removable as between tenant for 
 life and the remainder-man. Lord Hardwicke seems to 
 treat the two classes much in the same light, and considers 
 their claims founded on similar reasons .... and from 
 the analogy which prevails between them, it will always 
 be found useful in determining the rights of tenant for 
 life or in tail, to consult any corresponding cases that 
 have been decided between a common tenant and his 
 landlord (u)." 
 
 (t) The atove observations as to 
 the power of tenant for life are ap- 
 plicable only where he holds mth 
 impeachment of waste. If he holds 
 without impeachment of waste, then 
 he is, subject to the qualification in 
 the text, on much the same footing 
 as a tenant in tail. 
 
 (a) See Amos & Per., Fixtures, 
 1S3, 134. At the same time, "^t 
 must carefully be observed, that an 
 
 instance of the right allowed to a 
 tenant against his landlord, is no 
 authority for its allowance to an 
 executor against ■ the heir, or the 
 remainder-man, or reversioner ; nor 
 does it follow, that because the 
 executor of tenant for life or in tail 
 is entitled to certain Fixtures, that 
 the executor of tenant in fee will 
 also be entitled." 1 "Wms. Exors. 
 pt. a, bk. 2, ch. 2, § 3, 731. 
 
OF EXECUTORS AND ADMINISTRATORS. 655 
 
 These cases, however, must always turn upon their own Decisions must 
 particular circumstances, but it seems that if the amount the circum- 
 of favour shown to a tenant in tail or for life be not so stances of each 
 
 case, 
 
 great as that shown to an ordinary tenant, the rule of law 
 as to them is not of so strict a character as it is between 
 heir of tenant in fee and his executor. Further, it may 
 at the least safely be aflfirmed that wherever the strict 
 rule is relaxed as between executor of owner in fee and 
 the heir, there most certainly the same will happen as 
 between the representatives of tenant in tail or for life 
 and the reversioner or remainder-man, whatever may be 
 the nature of the fixtures set up. On the other hand . . . 
 " With regard to the decision as to Fixtures between land- 
 lord and tenant, wherever it has been decided that Fix- 
 tures are not removable by a common tenant, d fortiori, 
 they are not removable by the executor of tenant for life 
 or in tail, or the executor of tenant in fee. It will, there- 
 fore, be useful to point out some cases where the decisions 
 have been against the right of removal by a common 
 tenant" {x). And probably these form the only general 
 statements that can safely be made on this perplexing 
 subject, for in all such cases we have to look at the degree 
 of annexation, and the injury to the freehold by severance, 
 and make sure whether it is or is not so incorporated with 
 the freehold as to form part of it {y). 
 
 3. It now remains for us to consider how matters stand 
 as between the personal representative of a tenant for life 
 
 {x) 1 'Wms. Exors. pt. 2, hk. 2, in Martin v. Moe, 7 E. Sc B. 237 ; 
 
 ch. 2, §3. The learned author then 26L. J. Q.B. 129; cited approvingly 
 
 refers to Mwes v. Maine, 2 Sm. L. in Parsmis v. HiTid, 14 W. E. 860 ; 
 
 C. to show that executors are not Holland v. Hodgson, L. E. 7 C. P. 
 
 allowed to remove Fixtures put up 328 ; 41 L. J. C. P. 146 judgt. 
 solely for agricultural purposes, and Note. — " The rights of a tenant 
 
 Buclcland v. Butterfidd. 2 Brod. & in tail after possiUlity of issue ex- 
 
 Bing. 54, to show the same inability tinct in removing things affixed to 
 
 in regard to a conservatory. See the freehold, may be considered as 
 
 this case referred to mite, pp. 101, being the same as those of a tenant 
 
 110. for life without impeachment of 
 
 {y) See Lord Campbell's judgt. waste." Amos In, ¥ev., Fixtures. 
 
656 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Consideration and the remainder-man or reversioner of the estate, -where 
 
 of the third . . . . , 
 
 proposition at a contest anses between them as to their respective rights 
 p. 639. ^Q Fixtures. We have seen in the previous pages that 
 
 the executor of a person holding land by any tenure is 
 favoured in regard to emblements as against the heu-, 
 reversioner, or remainder-man. We have also seen how 
 the representatives of traders are favoured, and how the 
 representatives of mere agriculturists are not so favoured, 
 the difference between the power of a tenant in tail and 
 that of a tenant for life during the lifetime of each, and 
 how such power ceases at their death. The position of 
 the representative of tenant in tail or for life has been 
 shown to be intermediate between that of executor of 
 tenant in fee and that of executor and ordinary yearly 
 tenant, and the difficulty of announcing any hard and fast 
 rule from that circumstance has been pointed out. Now 
 the statements that have been made principally concern 
 Trade Fixtures, and in dealing with the two former inquiries 
 as to the relative rights of executor of tenant in fee and 
 of tenant in tail, it has been shewn how the rights of 
 representatives of those persons stand in regard to their 
 claims to Trade Fixtures. 
 
 We may now see what are the rights of the representa- 
 tive of a tenant for life to remove other kinds of Fix- 
 tures as against the remainder-man or reversioner of the 
 estate, and for this purpose we shall assume that what- 
 ever the representative of tenant for life may claim, that 
 also may be claimed by the representative of tenant in 
 tail (z) ; in short, that for practical purposes, the rights 
 of representatives of tenant in tail and for life are 
 similar (a). Accordingly, where the term " tenant for 
 life " is used in the following remarks, there " tenant in 
 
 (a) TKe converse of this, however, 
 is not universally true, because, as 
 we have seen, while all tenants in 
 tail may commit waste and disannex 
 actual Fixtures so as to make them 
 
 chattels, all tenants for life cannot 
 do so. 
 
 (a) See Amos & Fer., Fixtures, 
 143. Read p. 650. 
 
OF EXECUTORS AND ADMIN7STKAT0ES. 657 
 
 tail " can be read in substitution for it. Now, it may be 
 affirmed as the rule of law that the representative of 
 tenant for life cannot really remove Fixtures of any 
 kind, whether of an ornamental, domestic, or agricultural 
 character. This is the rule if we employ the word fixtures Rule as to 
 in its true sense, that is, of things, solo infixa so affixed tenn^s^gnifieT^ 
 to the freehold as to actually be part of it. But the things incor- 
 matter is not so easily disposed of if we take the word the freehold. 
 Fixtures in its ordinary sense of things attached in a man- 
 ner to the freehold like grates, cupboards, &c., in a house. 
 Let us put a case. A man comes into possession of a life ^^ imaginary 
 estate, and he finds there a well-furnished mansion, a well- 
 timbered park, ornamental grounds, farm buildings, and 
 and so forth. He adds to the mansion, say new cornices, 
 balconies, balustrades, statuary, puts in new plate glass 
 windows, new stoves, ovens, and so forth. In the park 
 and grounds he plants new trees and shrubs, and to the 
 farm buildings adds new outhouses, stables, and sheds. 
 Just as he has completed all these, and probably in the 
 expectation of a long life to enjoy his improvements, he 
 dies. Query, what can his executor or administrator 
 claim from the remainderman or reversioner ? Cb) The Things here 
 
 . ., connected with 
 
 first thing here to be noticed is that the articles men- the freehold 
 tioned divide themselves into two classes : — those that the su^^^^g'iti"'^ 
 tenant for life found on the estate when he came into into certain 
 possession, and those which he himself added to the pro- 
 perty. These again are sub-divisible into such as are 
 there for ornament, or for domestic uses ; again, those 
 which were previously there, or which he put up, or for 
 agricultural purposes. As to the main division, it is I*i"^';™ ^^^ 
 
 ^ ^ . . sub-division 
 
 obvious that such things as the tenant for life found on not material, 
 the estate when he came into possession are not removable 
 by him, because he is to enjoy the property only for his 
 life, and the accessories thereof are no more at his disposal 
 than the res principalis to which they belong. The sub- 
 division is immaterial, because as between executor of 
 
 (S) S'Eyneourt v. Gregory, L. E. 3 Eq. 382 ; 36 L. J. Ch. 107. 
 
 u u 
 
658 WILLS OF PEKSONAL PROPERTY. 
 
 tenant for life and remainderman or reversioner the 
 
 articles comprised in each, are all on the same footing in 
 
 the eye of the law so far as to the right to remove 
 
 them is concerned. The matter then becomes narrowed 
 
 Real question into this question : — What sort of things added by a 
 
 between exe- tenant for life after coming into possession, can be claimed 
 
 cutor, &c., of by his executor as the tenant's personal chattels ? As 
 
 and remainder- before pointed out, we must not in answering this ques- 
 
 man or rever- ^Jqjj assume that a tenant for life is in exactly the same 
 
 sioner. . . . •' . 
 
 position as any ordinary tenant ; all we can assume is that 
 his position is analogous to the latter's. It may seem 
 hard that such is the case, but the law does not at present . 
 regard tenant for life as being in precisely the same situa- 
 tion as a common tenant is with regard to his landlord. 
 On the other hand, however, it regards his executor's claim 
 to Fixtures more leniently than it does the claim of the 
 Necessity for executor of owner in fee. We then come back to the rule 
 the mle^af ™ ^^fors spoken of, namely, that if the heir of executor in 
 between heir fee Can remove things similar to those which we have sup- 
 
 and executor of i.i -i .i • • . , r ^-i- 
 
 owner in fee. posed to have been put by our imaginary tenant for life, 
 
 then the executors of the latter could do the same ; 
 
 but it will not follow that because the executor of 
 
 an ordinary tenant can remove them, that therefore 
 
 Tenant for life the executor of tenant for life can do so (c). He might 
 
 footing as an probably in certain cases be permitted to be on the same 
 
 ordinary footing as a common tenant's executor, yet we are 
 
 tenant. ° , , , i i , , . 
 
 not to assume that such would be the case. As to the 
 other proposition, the matter seems clear, and what we 
 have previously stated as to the right of executor in fee, 
 will show what things the executor of tenant for life in the 
 case supposed, could have taken as against the remainder- 
 man or reversioner of the estate. 
 
 A specific instance of the nature and extent of the 
 right which a tenant for life has in regard to his power 
 to remove certain annexations allowed to be called 
 Fixtures, is furnished by the case of D'Eyncourt v. 
 
 (c) See Grady on Fixtures', 3rd ed. 69. 
 
or EXECUTORS AND ADMINISTRATORS, 659 
 
 Gregory {d), and we will conclude our remarks on the <^ase of 
 present subject, and also bring this chapter to a close t. Oregary. 
 by referring to the useful and important decision in that 
 case, which may be thus stated. A. was the tenant for 
 life of certain estates under the Will of B., and he was 
 also tenant in fee simple of other estates. A., by 
 his WUl, dated in 1848, devised the latter in strict 
 settlement to the persons to whom the other settled 
 estates would pass. These fee simple estates so dis- 
 posed of he called " the devised estates," and the others 
 " the settled estates." He also gave to his trustees certain 
 furniture, statues, pictures, &c., of which he had power to 
 dispose, and which he desired might go as heirlooms with 
 the property, so far as the law would permit. He then 
 added a shifting clause, providing that if any tenant in 
 tail in possession of the estates taken under the Will of B., 
 — i.e., "the settled estates" — should not, within twelve 
 months after becoming so entitled, re-settle them with all 
 the property and heirlooms derived iinder B.'s Will, in such 
 a manner as to go according to the limitations contained in 
 his own Will, then that all the estates which should pass 
 under the latter instrument, — i.e., "the devised estates" — 
 together with all the articles thereby made heirlooms, were 
 to go just as if the limitations made in favour of the person 
 neglecting or refusing to re-settle, had not been inserted 
 in the Will at all. Upon A.'s death, in 1854, C. became 
 entitled to both the settled and the devised estates ; and 
 on his death in 1860, D. took his place. In 1861, D. exe- 
 cuted a deed-poll by which he declared his intention not 
 to re-settle the estate in compliance with the terms of A.'s 
 Will ; whereupon the shifting clause took effect, and D. 
 gave up " the devised estates " to E. It appears that on 
 "the settled estates" there had been two mansions at X. 
 and Y., but that the former had not been occupied by the 
 family since 1780 ; and at what time it had been allowed 
 to fall into decay did not clearly appear by the evidence. 
 
 ((f) L. K, 3 Ec[. 382 ; 36 L. J, Ch. 107 (1867). 
 
 u tr 2 
 
WILLS OF PKESONAL PEOPERTY. 
 
 In its place, A. had erected a magnificent mansion known 
 as Z., the appointments of which were in keeping with the 
 character of the structure. Upon the refusal of D. to re- 
 settle the life estates, the question arose as to which of 
 the articles placed by A. in or about the house Z., were 
 operated upon by the shifting clause in his Will, and 
 which of them would go as Fixtures with "the settled 
 estates." As to some of them there was no dispute, and 
 those were accordingly delivered up to E., who presented 
 a petition to the Court of Chancery for the purpose of 
 ascertaining to whom the rest belonged, and this raised 
 the question for the decision of the Court. The articles 
 concerning which there existed a doubt were the fol- 
 lowing : — 
 Articles in (a.) Tapestries not attached to the freehold at the 
 
 '°^"**' . death of the testator, but which had been affixed 
 
 to the walls, or fastened upon a screen by C. 
 (&.) Tapestries put up by A., each on wood stretchers, 
 which were attached by screws or nails to blocks 
 of wood inserted in the brick wall, according to 
 the usual method of fastening glasses, pictures, 
 tapestries, &c. Where the walls were recessed, 
 painted wood-mouldings were placed round the 
 face of the tapestry flush with the wainscoting 
 or panelling of the room, and the nails, &c., were 
 stopped in and painted over. The affidavit of 
 these particulars stated also that the annexations 
 in question were easily removable, that if they 
 were removed no material damage would be 
 caused to the walls, and that the space left could 
 easily be re-ornamented so as to be in keeping 
 with the rest of the apartment, 
 (c.) Then there was a portrait in the great haU, secured 
 in the same way as the tapestries, and this, it 
 was said, could be removed without deterioration 
 to the house. 
 (d.) Carved and gilt frames fitted with blue and white 
 satin. 
 
OP EXECUTORS AND ADMINISTRATORS. 661 
 
 / 
 
 (e.) Two carved fiqures and two sculptured vases, which Articles m 
 
 ,1 1111,- dispute. 
 
 were attached to pedestals or rested by their own 
 weight. 
 (/.) A pair of stone lions, as to which it was not certain 
 whether they did or did not form part of the 
 design of the house. 
 (g.) Sixteen stone garden seats fixed on their supports 
 
 by their own weight. 
 Lord Romilly, after remarking that with respect to these Judgment. 
 things he felt very considerable difficulty, stated that all 
 articles which belonged to A., and which remained de- Articles 
 tached at his death formed part of his personal estate, theTreeho^M™ 
 and that C, even with a wish to carry out A.'s wishes and belonging 
 could not have so affixed them to the freehold as thereby ]jfe™ Jgath^ 
 to affect the rights of his successors in the estate. His *^^ ^'^ p^""" 
 
 .... sonal chattels. 
 
 lordship then says: — " What i have lelt embarrassed by T^e difficult 
 
 is the more or less connection (using that word in its point in the 
 
 extended sense) with the freehold, and with the house 
 
 and grounds themselves, which is to be observed in the 
 
 articles which were affixed by A. himself The first of Thetapestiy 
 
 these which I think proper to mention is the tapestry no™removal)le 
 
 which had been put up by the testator A. himself" The 
 
 learned judge, after comparing this species of ornament 
 
 with wall paper, panelling and fresco paintings, all of which 
 
 would, in his opinion, not be removable by a tenant for 
 
 life himself in his lifetime — pronounced the tapestry 
 
 already fixed at the time of A's death to be not remov- and the same 
 
 able. As to the portrait, although this, like the tapestry, portrait. 
 
 could be taken away in one sense, that is to say, so as 
 
 to leave uninjured the space out of which it would be • 
 
 taken, yet said his lordship — "in all these cases, whether 
 
 it is the paper, the silk, the panels, or the tapestry, they 
 
 are all part of the wall itself, and they are Fixtures not to Krst principle 
 
 be removed. In all these cases the question is, not whether i^ all similar 
 
 the thing is easily removable, but whether it is essentially ''^^^^■ 
 
 a part of the building itself from which it is proposed to 
 
 remove it, as in the familiar instance of the grinding-stone 
 
663 
 
 WILLS OF PERSONAL PROPERTY. 
 
 The carved 
 frames, figui*es, 
 vases, lions, 
 and garden- 
 seats declared 
 to be irre- 
 movable. 
 
 Mode of 
 annexation of 
 these things 
 immaterial. 
 
 Second prin- 
 ciple in these 
 
 Difficulty of 
 distinguishing 
 between mere 
 ornaments and 
 things that 
 are part of an 
 architectural 
 design. 
 
 Importance of 
 annexation to 
 the freehold. 
 
 of a flour-mill, which is easily removable, but which is 
 essentially a part of the mill itself, and therefore goes to 
 the heir." The carved fraones filled with blue and white 
 satin, the carved figures, the sculptured vases, the lions, and 
 the garden seats were also pronounced to be irremovable, 
 and therefore went with the estate. On the other hand, 
 the chimney-glass and oil paintings were such things as 
 A. might himself have removed, and were therefore not 
 in the same category as the tapestry, &c. 
 
 As to the mode in which these things, declared by Lord 
 Romilly to be part of the estate where affixed thereto, 
 his lordship said : — " I think it does not depend upon 
 whether any cement is used for fixing these articles, or 
 whether they rest by their own weight, hut it depends 
 upon whether they are strictly and properly part of the 
 architectural design of the place itself, put in there as 
 such, as distinguished from mere ornaments to be after- 
 wards added .... I admit that the distinction between 
 such statues as are added by way of ornament and such 
 as belong to an architectural design and form part of the 
 building itself, is extremely thin, and that in many cases 
 it would be extremely difficult to distinguish them, unless 
 it were done in an arbitrary manner, so closely might one 
 run into the other. But I am unable to suggest any other 
 mode by which the true distinction can be defined than 
 that which I have already stated .... Unquestionably^ 
 in coming to these conclusions, I have not done so with 
 any degree of confidence, or even of complete satisfaction 
 to myself .... The best conclusion I can come to with 
 regard to the articles I have enumerated, is that they 
 seem to me to belong to the freehold, and to be inseparable 
 from it. All the rest are in my opinion removable, and 
 belong to the personal estate .... I consider myself 
 bound to hold that A. meant in the event of the refusal 
 to re-settle, which has occurred, to give D. every part of 
 the furniture or Fixtures which the law would allow him 
 to dispose of." 
 
OF EXECUTORS AND ADMINISTEATOES. 663 
 
 Such was the decision in D'Eyncourt v. Gregory, and Excellence of 
 although this was not a direct case of an executor of laid down in 
 tenant for life claiming Fixtures as against a remainder- ^'^yncom-t v. 
 
 1 ■•11 • 1 Gregory. 
 
 man or reversioner, yet the principles there enunciated 
 are applicable under other similar or analogous circum- 
 stances. Notwithstanding the diffidence expressed by Lord The decision 
 Romilly as to the correctness of the views expressed by iaw^and°sense. 
 him in D'Eyncourt v. Gregory, it is impossible, after con- 
 sidering the facts of that case attentively, to dispute 
 either the legal or the common-sense force of the reasons 
 which guided his lordship to the conclusion at which he 
 arrived. Viewed in any way they seem to be irrefutable, 
 and a few more decisions like the one we have just con- 
 sidered, would tend greatly to the simplification of a sub- 
 ject which has been made — somewhat unnecessarily, we 
 think — to assume a most complicated form. D'Eyncourt 
 V. Gregory forms in fact an excellent example of how, 
 when once even a single correct and comprehensive prin- 
 ciple is enunciated concerning the most perplexing and 
 intricate subject with a view to its simplification, previous 
 difficulty is capable of being diminished to almost an 
 infinitesimal degree. 
 
CHAPTER XL 
 
 The old 
 
 Ecclesiastical 
 
 Courts. 
 
 Powers of the 
 Ecclesiastical 
 Courts 
 in certain 
 matters 
 acquired by the 
 Court of 
 Chancery. 
 
 Prohate 
 Division 
 
 THE PROBATE, DIVOECE, AND ADMIRALTY DIVISION OF 
 THE HIGH COURT OF JUSTICE, WITH A SKETCH OF 
 ITS PRACTICE IN MATTERS TESTAMENTARY. 
 
 Before the establishment of the Court of Probate by 
 the Legislature in 18.57 (a), the authority to grant or 
 revoke probates of Wills and Letters of Administration of 
 the effects of deceased persons, was exercised by various 
 tribunals in different parts of the country, called Eccle- 
 siastical Courts. In their administration, however, of 
 testamentary few, they exercised a jurisdiction purely civil, 
 and only Ecclesiastical in name. 
 
 The Ecclesiastical Courts, from the earliest times, pos- 
 sessed the power to entertain suits for legacies, and for 
 enforcing the distribution of intestate's effects ; but owing 
 to their inability to dispose of questions connected with 
 a trust, with a legacy or annuity arising from, or secured 
 upon land, and their not possessing the adequate authority 
 to marshal assets (b), their jurisdiction over these matters 
 became practically obsolete, and the Court of Chancery 
 possessing concurrent jurisdiction, the cognizance of 
 those questions by degrees devolved wholly upon that 
 tribunal (c). 
 
 The Court of Probate could not, and the Probate Divi- 
 
 (ffl) By 20 & 21 Vict. c. 77. 
 
 (b) That is to arrange the different 
 funds of a debtor of two or more 
 creditors as may without injustice 
 satisfy every claim of the creditors. 
 Smith, Man. Eq. Chap. II. sect. 10 ; 
 also ante, p. 502. 
 
 (c) See ante, p. B57 etseq., and the 
 General Report of the Ecclesiastical 
 Commissioners, Feb., 1832, a valu- 
 able compilation, to which the pre- 
 sent writer is indebted for several 
 statements in this chapter. 
 
PRACTICE 01" THE HIGH COURT IN PROBATE MATTERS. 665 
 
 sion of the High Court of Justice (see post, n. (m) p. 667), H. c. j. can- 
 cannot entertain suits for legacies, or for the distributions suits for 
 of residues, questions connected with those branches of legacies and 
 
 . -11 1 • 1 1 1 distribution of 
 
 testamentary law being cognizable exclusively by the residues. 
 Chancery Division of the High Court of Justice, which by 
 the Judicature Acts is to deal with matters formerly 
 within the exclusive jurisdiction of the Court of Chan- 
 cery. (20 & 21 Vict. c. 77, s. 23, " Court of Probate Act, 
 1857.") 
 
 The Ecclesiastical Courts which had jurisdiction in Names of the 
 matters and causes testamentary, were the Courts of the mentary" 
 Province of Canterbury and York ; those of the former Courts. 
 province being the Arches Court or Supreme Court of 
 Appeal, the Prerogative or Testamentary Court, and the 
 Court of Peculiars ; while those of the Province of York 
 were the Prerogative or Testamentary Court and the 
 Chancery Court. These were termed Provincial Courts. 
 There were also Diocesan Courts, which were the Consis- 
 torial Courts of each diocese ; that is. Courts held by every 
 diocesan bishop for the trial of ecclesiastical causes and 
 for granting probates and administrations. These inferior 
 tribunals exercised the same jurisdiction in kind, though 
 limited in degree, as the Court of Arches and the Prero- 
 gative Court (d). 
 
 From each of the Provincial Courts an appeal lay to 
 the Court of Delegates, which was generally composed of 
 three of the puisne judges, one from each of the Com- 
 mon Law Courts, and three or more civilians, or judges of 
 the Ecclesiastical Courts. 
 
 The decision of the Delegates was final, no appeal from Court of 
 them lying as a matter of right; but the Sovereign ^^'^s***^- 
 might have been petitioned for a Commission of Review ; 
 and if that were granted, the matter was referred to the 
 Lord Chancellor, who, after hearing counsel on both sides, 
 advised the Sovereign thereon. The power of this Judicial 
 tribunal was subsequently transferred to a new one created <{o™"i"ee of 
 
 \ •' the Privy 
 
 by the Legislature in 1837, and styled the Judicial Com- Council. 
 (d) 3 Bui-n, Ecu. Law, 182. 
 
WILLS OF PERSONAL PROPERTY. 
 
 Ordinaries. 
 
 Archdeacons. 
 
 Deans, &o. , &c. 
 
 Manorial 
 Courts. 
 
 Court of 
 Arches and 
 Prerogative 
 Court of 
 Canterbury. 
 
 The Court of 
 Probate was 
 one of record. 
 
 mittee of the Privy Council (e). This committee con- 
 tinued to be the Court of Appeal from the decisions of the 
 Ecclesiastical Courts in causes testamentary until 1857, 
 when the new Court of Probate was constituted, the 
 appeal from which lay to the House of Lords (/). By 
 section 16 of the Judicature Act, 1873, the jurisdiction 
 of the Court of Probate was transferred to the Supreme 
 Court, from which an appeal lies to the " Coui-t of 
 Appeal " {g). 
 
 The judges of the old Ecclesiastical Courts were styled 
 Ordinaries, and in most cases the Ordinary was the Bishop 
 of the diocese in which the testator had lived (h). 
 
 Archdeacons also were accustomed to grant probate of 
 Wills and Letters of Administration ; but this was only 
 where they had an exclusive and prescriptive right to do 
 so, and not by reason of their office as archdeacons (i). 
 
 Deans, prebendaries, parsons, vicars, and others, exer- 
 cised a jurisdiction within certain districts, called Peculiars, 
 many of which were exempt from the jurisdiction of the 
 Ordinary, and subject only to that of the Metropolitan. 
 
 Some Manorial Courts also exercised a testamentary 
 jurisdiction, but these were very few in number. 
 
 The two chief courts were the Prerogative Court of 
 Canterbury and the Arches Court, which were formerly 
 established at Doctors Commons in the City of London, 
 and were held with the same regularity as the Courts of 
 Common Law at Westminster {k) ; and the system of law 
 which governed their decisions was a blending of the 
 Civil Law of ancient, with the Canon Law of modern 
 Rome, the Ecclesiastical Constitutions, together with the 
 Common and Statute Law of this realm (i). 
 
 The Court of Probate Act, 1857, abolished the jurisdic- 
 tion of the Ecclesiastical Courts over probates of Wills 
 
 (e) 2 & 3 Will. 4, c. 92, and 3 & 4 
 Will. 4, c. 41. 
 
 (/) 20 & 21 Vict. c. 77, s. 39. 
 
 (g) See Appendix, n. B. 
 
 (K) Swinb. pt. 6, sect. 11. 
 
 (i) Gib. Cod. Jur. Ecc. Ang. 663 ; 
 
 Swinb. pt. 6, sect. 11 ; Robinson v. 
 Godsalve, 1 Lord Raymond's Rep., 
 123. 
 
 (i) 3 Burn. Ecc. Law, 182. 
 
 (0 lb. 
 
PfiACTICE OF THE HIGH COURT IN PROBATE MATTERS. 667 
 
 and grants of administration, and transferred it to the 
 Sovereign, whose authority was to be exercised in the 
 Court of Probate, which, unlike the tribunals it superseded, 
 was made a Court of Record. 
 
 The judge of this Court, until the end of 1875, was Judge before 
 styled the Judge Ordinary— that is, as one having a juris- ^'its'st^d 
 diction in his own right — but now, by the Judicature Acts, Judge 
 
 ,. mi,-r..i / s Ordinary. 
 
 he IS called the President (m). 
 
 The Probate Division of the High Court of Justice is Open to all 
 
 . . practitioners. 
 
 open to all counsel and solicitors, whereas the Ecclesiastical 
 Courts were accessible only to practitioners, who were 
 styled, respectively. Advocates and Proctors, whose posi- 
 tion, however, was in most respects analogous to that of 
 counsel and solicitors in other Courts. 
 
 The office of Proctor was at that time a freehold, and to Proctors. 
 it were attached certain exclusive rights and privileges, 
 which were abolished by the Probate Act of 1857. Hand- 
 some compensation was awarded to the gentlemen affected 
 by the Statute, who were thereby allowed to become 
 solicitors and attorneys without payment of stamp duty, 
 or any other outlay whatever. The office of proctor still 
 exists although its peculiar privileges do not. 
 
 "The Ecclesiastical laws of this country have been, for Origin of our 
 the most part, derived originally from the authority exer- i^w. 
 cised by the Roman Pontiffs, in the different states and 
 kingdoms of Europe" (n). But although this is so, 
 these laws have been incorporated into our own entirely 
 by the consent of the people of this country, " and not as 
 laws of any foreign prince, potentate or prelate " (o). 
 
 By the Canon Law is meant a system of laws, which Th^ Canon 
 from the middle of the twelfth century, has been com- 
 piled by successive Popes and promulgated at different 
 periods throughout Europe. " In England the authority 
 
 (m) His full title is that of Presi- which, for the sake of brevity, we 
 
 dent of the Probate, Divorce and term " The Probate Division of the 
 
 Adniu'alty Division of the High High Court of Justice. " 
 
 Court of Justice. This also indi- (n) Gen. Rep. of Ecc. Comm. 10. 
 
 cates the correct designation of the (o) 25 Hen. VIII. c. 21 ; Pre- 
 
 Division over which he presides, amble. 
 
668 
 
 WILLS OF PERSONAL PROPERTY. 
 
 The Legatiue 
 Constitutions. 
 
 The Civil Law. 
 
 The Common 
 Law. 
 
 The Statute 
 Law. 
 
 of the Canon Law has always been much restricted, being 
 considered, in many points, repugnant to that of England, 
 or incompatible with the jurisdiction of the Courts of 
 Common Law," but this Pontifical system "containing 
 many equitable and profitable laws," " has been for many 
 centuries accommodated by our lawyers to the local habits 
 and customs of the country" (p). 
 
 The Ecclesiastical or Legatine Constitutions, are of 
 English origin, and " were passed in this country by the 
 Pope's legates, Otho and Othobon, and the Archbishops 
 and Bishops of England, assembled in National Councils, 
 in 1237 and 1269 ; a further body of Constitutions framed 
 in Provincial Synods, under the authority of successive 
 Archbishops of Canterbury, from Stephen Langton, in 
 1222, to Archbishop Chicheley, in 1414 ; and adopted also 
 by the Province of York in the reign of Henry VI. (q). 
 
 "By the Civil Law is meant, the law of the ancient 
 Romans, which had its foundation in the Grecian republics, 
 and received continual improvements in the Roman State 
 during the space of upwards of two thousand years, and 
 did not expire at last even with the empire itself" (r). 
 
 " The Common Law is so called because it is the common 
 municipal law or rule of justice throughout the kingdom 
 .... common to the generality of all persons, things, and 
 causes, and hath a superintendency over those particular 
 laws that are admitted in relation to particular places or 
 matters . . . ." (s). 
 
 " The Statute Law is made by the sovereign, the lords 
 spiritual and temporal and commons in parliament 
 assembled," who, by their conjoint authority, may " control, 
 alter, mitigate, repeal, revive, explain, amend, both the 
 
 (j?) Gen. Rep. Eoo. Comm. 10. 
 
 (q) Gen, Rep. Ecc. Comm. 11 ; 
 1 Black. Comm. 83. 
 
 (r) Burn Ecc. Law, Author's Pre- 
 face, 1, an interesting and valuable 
 summary of the history, &c., of the 
 
 Ecclesiastical Law of England, well 
 worthy of a careful perusal. See 
 Butler's Horoe Juridicm Subsecivce, 
 also ante, p. 3, n. (A). 
 (s) Burn, Pref. 30. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 669 
 
 common, canon, and civil laws, and actually have done so 
 in abundance of instances " (t). 
 
 "Where these laws do interfere and cross each other, Order of 
 
 prGCsdciiCS 
 
 the order of preference is this : the Civil Law submitteth 
 to the Canon Law ; both of these to the Common Law ; 
 and all the three to the Statute Law " {u). 
 
 Such, then, are the sources from whence has been Procedure of 
 derived the present personal testamentary law of England ; Di^io^!'*^ a 
 and although the Ecclesiastical Courts, in which a highly large extent' 
 important branch of that law was administered, have ceased derfved'from 
 to exist, yet the procedure of these Courts was the model JJ*^ Spiritual 
 for that of the Court of Probate, which was set up in 
 1857 {w) ; while the legal principles which have governed its 
 decisions are to a large extent the same as those which 
 were established by the Ecclesiastical Courts during the 
 three centuries of their existence (x). 
 
 These Spiritual Courts possessed from very ancient times Jurisdiction of 
 until 1857 exclusive jurisdiction over all Wills of personal decide on the 
 estate, so far as their validity was concerned ; but the validity of a 
 Court of Chancery assumed the right to construe these 
 instruments, and that power, as we have seen, is still 
 retained by the Chancery Division of the High Court of 
 Justice (y). 
 
 With regard to devises of realty, they were never Devises of 
 cognizable by the Ecclesiastical Courts, nor were they TOgn^aUeby 
 required to be proved, and the power to construe them "^^ Courts. 
 belonged exclusively to the Courts of Common Law. 
 
 The Probate Division of the Supreme Court, unlike the The Probate 
 old Ecclesiastical Courts, can grant probate of a Will grant probate 
 affecting real estate (z), even if the executor named therein "? ^ i""® ^^' 
 
 (t) Bum, Pref. 34. own enactments and customs, let 
 
 (u) Id. 1. him peruse the arguments and judg- 
 
 (w) 20 & 21 Vict. c. 77, s. 29. ment in Drwmmond v. Parish, 3 
 
 (x) But see In the goods of Oli- Curt. Ecc. Rep. 522. 
 
 phant, 1 Sw. & Tr. 525 ; 30 L. J. {y) See ante, p. 557 et seq. 
 
 P. & M. 82. If the reader is de- (0) 20 & 21 Vict. c. 77, ss. 61, 
 
 sirous of seeing how much our tes- 62, 63, 64. O'Btm/er v. Geare, 1 
 
 fcamentary law of personalty is Sw. & Tr. 465 ; 29 L. J. P. & M. 
 
 indebted to other sources than our 47. 
 
670 
 
 WILLS OP PERSONAL PROPERTY. 
 
 But not where 
 a trust is 
 involved. 
 
 A devise is not 
 required by 
 law to be 
 proved. 
 
 Where devise 
 is in execution 
 of a Power. 
 
 Mixed Wills. 
 
 Granting 
 probate is a 
 judicial act. 
 
 renounces his rights under it (a). But the Probate Divi- 
 sion has no jurisdiction over Wills dealing with real estate 
 only (6). 
 
 Also, if the Will contains a direction to the executor to 
 convert the realty into money and hold it on certain 
 trusts, the Probate Division will not, in such a case, 
 assume jurisdiction (c). 
 
 As to Wills of realty only, there was no form of pro- 
 ceeding analogous to probate in common form of a Will of 
 personalty ; nor, as we have already indicated, were they 
 required to be proved or registered in any Court (d) ; a 
 rule unaffected by the Probate Act of 1857. 
 
 If a Will of realty be made in execution of a Power of 
 appointment, the executors named therein are not entitled 
 to probate, as in that case, the interest is only co-extensive 
 with the power given by the Will, and they take nothing 
 jure representationis (e). 
 
 With regard to mixed Wills, that is to say, those of 
 realty and personalty, the Ecclesiastical Courts granted 
 one entire probate of these, though that concerning the 
 realty was never allowed to prejudice the heir, if he chose 
 to dispute the Will. Now, by the Act of 1857, probate 
 of a mixed Will of realty and personalty is conclusive as 
 to both (/). 
 
 When we speak of granting probate of a Will — which, 
 it is to be remembered, is a judicial, and not a ministerial 
 act (g) — we mean that the original document having been 
 deposited in the registry, or place appointed by law (h) for 
 
 (ffi) Zn the goods of Jordan, L. R. 
 1 P. & D. 555 ; 37 L. J. P. & M. 
 22. 
 
 (J) 2n the goods of Drummond, 2 
 Sw. & Tr. 11 ; In the goods of Bootle, 
 L, R. 3 P. & D. 177; 43 L. J. 
 P. &M. 41. 
 
 (c) In the goods of Barden, L. R. 
 1 P. & D. 325. 
 
 (d) Gen. Rep. of Ecc. Commrs. 27. 
 
 (e) 0'D-wyerv.Geare,sa-pTa,n.(z). 
 (/) 20 & 21 Vict. c. 77, ss. 61, 
 
 62, 63, 64. But the same Will 
 must regulate the disposition of 
 both kinds of property; Campbell 
 V. Luqi, L. R. 2 P. & D. 209 ; 40 
 L. J. P. & M. 22. 
 
 (g) Per Buller, J., in Allen v. 
 Dundas, 3 Term Rep. 125. 
 
 (h) 20 & 21 Vict. 0. 77, s. 66. 
 Sect. 91 of this Act establishes 
 depositories for the safe custody of 
 the AVills of living persons. Ste 
 ante, p. 429. 
 
PRACTICE OP THE HIGH COURT IN PROBATE MATTERS. 671 
 
 the safe custody of original testamentary papers, a copy 
 of the WiU on parchment, duly authenticated by the seal 
 of the High Court of Justice, Probate Division, is made, 
 and handed to the person entitled to cany out the terms 
 of the WiU. 
 
 This probate of a Will is granted by the Court either Probate 
 in what is called Common Form or in Solemn Form of ^common or 
 Law ; that is to say, either upon a mere ex 'parte appli- Solemn Form, 
 cation to the registrar by the executors, or by witnesses 
 in open Court, when the judge pronounces his decision, 
 which is in the nature of a final decree (i). 
 
 " The difference between the effect of these two kinds Respective 
 
 /» 1 i • j_i • effects of 
 
 of probate is this :— p^tate in 
 
 " Probate in common form is revocable. An executor, solemn and in 
 
 1 p 1 1 1 . r 1 common 
 
 therefore, who takes probate m common form may subse- form 
 quently, at the instance of any party whose interest is 
 adversely affected by the Will, and without limitation as 
 to time, be required to bring in the probate, and be put 
 upon proof of the Will in solemn form. 
 
 " Probate in solemn form, when once granted, is, v)ith the 
 OTie exception in the next paragraph, iiTevocable as 
 against all persons who were cited to see proceedings, or 
 who can be proved to have been privy to those pro- 
 ceedings. 
 
 " Biit if a Will of subsequent date is afterwards dis- Will of sub- 
 covered, the probate of the earlier one, though granted in ^^otes pro-* 
 solemn form, would be revoked " {i). tate even in 
 
 Now, where a Will affecting real estate is to be proved „ . , . ' 
 
 1-1 pi^ QfiVlSfifiS 
 
 in solemn form, or is the subject of a contentious proceed- and others 
 ing, the heir-at-law, devisees, and other persons interested ™^\**wiii*^f 
 may be cited to see the proceedings, just as the next- realty proved 
 of-kin and others having interest in the personal estate form.*""' 
 
 (i) Coote's Prob. Prac. by Tris- 9 Moo. P. C. 131. It is almost un- 
 tram, 4th ed. 226. Where a later necessary to say that fraud will also 
 Will is found, see Culto v. Gilbert, invalidate probate in solemn form. 
 
672 
 
 WILLS OF PERSONAL PKOPERTY. 
 
 Protate of 
 Will affecting 
 real estate. 
 
 Probate of 
 devise is evi- 
 dence thereof, 
 except where 
 its validity is 
 put in issue. 
 
 Executor may 
 prove Will in 
 common or 
 solemn form. 
 
 Business of the 
 
 Probate 
 
 Division 
 
 H. 0. J. of a 
 
 twofold 
 
 character. 
 
 Definition of 
 " Common 
 form business." 
 
 may be cited or summoned Qc) ; but the Court may in its 
 discretion order the cause to proceed without them (Q. 
 
 Where a Will affecting real estate is proved in solemn 
 form, or its validity otherwise decided on, the decree or 
 judgment of the Court will be binding on the persons in- 
 terested in the real estate (m). If the heir-at-law, however, 
 is not cited, he will not be affected by the probate (n). 
 
 The probate, whether in solemn or common form of a 
 Will affecting realty, or an office copy thereof, will be 
 evidence of the same in suits concerning the property with 
 which it deals, except where the validity of the Will itself 
 is put in issue (o). 
 
 An executor may prove a Will, whether it be one affect- 
 ing realty or one of personalty only, either in common or 
 solemn form, and the heir-at-law cannot, by entering a 
 caveat, prevent the probate going in common form (jp) ; 
 but if any suspicion be entertained concerning the genuine- 
 ness of the instrument, or any ground for anticipating that 
 its validity may, at any future time, be impugned, the 
 executor should resort to the latter mode of establishing 
 the Will. 
 
 From some of the foregoing remarks it will have been 
 seen that the business of this Division of the Supreme 
 Court is of two kinds, which are termed respectively. 
 Common Form or Non-Contentious Business, and Con- 
 tentious Business. The former expression is very old, and 
 is thus described by the interpretation clause of the Pro- 
 bate Act of 1857 :— 
 
 " ' Common form business ' shall mean the business of 
 obtaining probate and administration where there is no 
 contention as to the right thereto, including the passing 
 
 (4) 20 & 21 Vict. c. 77, s. 61. 
 SeeJud. Act, 1875, Order XYI. 
 Pules 12—15, and Kennaway v. 
 Kmnaway, L. R. 1 P. & D. (N. S.) 
 148 ; 45 L. J. P. D. & A. Div. 86 ; 
 a.nA.posl, p. 676. 
 
 {J,) See EmherUy v. Tnvanion, 
 
 29 L. J. P. & M. 142. 
 
 (m) 20 & 21 Vict. u. 77, s. 62. 
 
 (m) lb. sect. 63. 
 
 (o) lb. sect. 64. 
 
 (p) See Toung v. Ferrie, 29 L. J. 
 P. & M. 69. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 673 
 
 of probates and administrations through the Court of 
 Probate in contentious cases ivhen the contest is termi- 
 nated, and all business of a non-contentious nature to be 
 taken in the Court in matters of testacy and intestacy 
 not being proceedings in any suit, and also the business 
 of lodging caveats against the grant of probate or admi- 
 nistration " (q). 
 
 All proceedings in the Probate Division of the High What is meant 
 Court of Justice, or in the registries thereof, not included in tiiitiourbusi- 
 the above expression, except the warning of caveats, are ^^^^ "^ *J'i^ 
 considered to come under the head of the contentious HighCovirt. 
 business of the Division (r). 
 
 "Lodging or 'entering' a caveat" means entering a " Lodging n 
 memorandum in a book kept for that purpose in all re- 
 gistries, to prevent probates or administrations from being 
 granted without the knowledge of the parties who enter 
 such memorandum, and it is competent to any person 
 having an interest to prevent a grant being issued without 
 notice to himself (s). 
 
 When some other party applies to this Division of the " Warning -i 
 High Court for probate of the Will or administration of 
 the effects which may be under the power of the caveat, 
 notice must be given by the Registrar of the Principal 
 Registry to the caveator, that is, the party who lodged the 
 caveat, or his proctor or solicitor, warning him to enter, 
 within six days, an appearance in the Principal Registry 
 with a statement as to his interest, &c., and "the giving 
 this notice is technically termed warning the caveat " {t). 
 
 (q) 20 & 21 Vict. c. 77, sect. 2. in 1876— is devoted to the Common 
 
 {r) Rules and orders of 1862, in Form Practice of the H. C. J. in 
 
 Cont. Bus. under the ahove Act, 3. granting probates and administra- 
 
 (s) Coote's Prob. Prac. 7th ed. tions, and is published under Mr. 
 
 241. Note. This work formerly Coote's name only. This edition we 
 
 contained a chapter on the Conten- cite as Coote's Prob. Prac. 
 
 tions Business of the Court of Pro- (i) Coote and Tristram, 234 ; but 
 
 bate by Dr. Tristram, and we have see Browne's Prob. Prac. 266, et 
 
 cited the work containing this seq. ; and as to subducting or with- 
 
 chapter as "Coote and Tristram." drawing a caveat, Coote, 274. 
 The last edition— the 7th, published 
 
674 
 
 WILLS OF PERSONAL PROPERTY. 
 
 A caveat 
 thought to be 
 in the nature 
 of a av/per- 
 
 Mode of 
 obtaining pro- 
 bate in simple 
 
 Force of the 
 probata when 
 granted. 
 
 Why solemn 
 form of proof 
 is preferable 
 to common 
 form in 
 doubtful cases. 
 
 One witness 
 generally suffi- 
 cient to prove 
 a Will in 
 common form. 
 
 The expression, it v/ill be perceived, is not quite an accu- 
 rate one, since the caveator, not the caveat, is warned. 
 
 Lodging a caveat, then, and " warning it," are part of 
 the common form business of the Probate Division (it). 
 
 A caveat in the Civil has been compared to & supersedeas 
 at the Common Law ; but of course the foraier is merely 
 a notice or caution, whereas the latter is a writ (v) ; indeed, 
 the resemblance between the two proceedings seems some- 
 what remote and fanciful. 
 
 Where an executor proves an imopposed Will, he merely 
 promises on oath or affirmation to carry out the terms of 
 the testator's Will, at the same time making an affidavit, 
 or written affirmation, of the personal estate of the 
 deceased. 
 
 Probate of the Will is then granted to him, and this has 
 a " twofold office, which, besides gi-anting the power of 
 administration, authenticates the Will, is evidence of the 
 character of the executor {x), and is, while unrepealed, 
 conclusive against all the world " (?/). 
 
 Probate of a Will, however, which is void in itself, doth 
 not make such void Will good (z). 
 
 As we have already seen, probate in common form is 
 revocable ; and if a Will proved by this process was after- 
 wards shown to be invalid, the probate might be called in, 
 and the legacies paid under it would have to be refunded. 
 If the legatees were unable to give back the money re- 
 ceived, the executors would be hable for the amount paid 
 away by them ; and this is why executors, in all doubtful 
 eases, should prove their testators' Wills in solemn and 
 not in common form {a). 
 
 To prove a Will in solemn form in the Probate 
 Division, it is not usually necessary in practice that both 
 
 (u) See note («), p. 673. 
 
 (v) See Owen, 509, 1 Lev. 157 ; 
 1 And. 303. 
 
 (x) Matson v. Svjift (cited in 
 Coote, 33), 14 L. J. Ch. 354 ; 8 
 Beav. 368. 
 
 [y) Dodd and Brooks' Prob. Prac. 
 337 ; Kerrick v. Branshy, 2 Eq. Gas. 
 Ab. ; 3 Bro. Gas. in Par. 358. 
 
 (z) God. Orp. Leg. 58. 
 
 (a) Coote and Tristram, 227. 
 
PRACTICE OF THE HIGH COUKT IN PROBATE MATTERS. 675 
 
 the attesting witnesses should be examined ; but of course 
 the Court may, in its discretion, require the attendance 
 and evidence of both (6). 
 
 The executor of a Will is the person upon whom the Executor is 
 duty of proving a Will primarily devolves, provided he is ^j^o^g^jJ^Sd 
 willing to act ; but if he decline to do so, the residuary prove wai. 
 or any other legatee may propound it (c). "And an 
 executor may be put on proof of a Will in solemn form by 
 compulsion, at the instance of any person whose interest 
 is adversely affected by the Will "(c). 
 
 By " propounding " a Will is meant presenting it to the Meaning of 
 Court for Probate or proof po'l^d'.'"^™' 
 
 Proceedings in the Probate Division in contentious Suits in con- 
 cases were, before the Judicature Acts, frequently com- *™*i""^ '^^ 
 
 ' _ » T. J commenced in 
 
 menced by entering a caveat, the nature of which we two -ways, by 
 have already considered. A caveat is still the first step in ^fetionT ^ 
 contentious business, inasmuch as it precedes the present 
 writ of surn/mons, and it may still be entered for the pur- 
 pose of preventing a grant issuing. The caveat wiU remain 
 in force for six months ; but it may be renewed from time 
 to time, and during its existence will prevent any grant of 
 probate or administration being made without notice from 
 the Principal Registrar to the parties on the other side 
 who lodged the caveat (cf). 
 
 Another mode of commencing a suit was by citation. Citation. 
 This mode was resorted to where an executor proposed to 
 prove a Will in solemn form of law, and no caveat had 
 been entered, or a caveat had been entered and no appear- 
 ance given to the warning thereof (e). 
 
 The various kinds of citations did not always necessarily Various kinds 
 initiate contentious proceedings, but rather caused them to °* citations, 
 continue, as the citee was able to obey the citation, and 
 thus conclude the matter ; for instance, where an executor 
 was cited to take probate of an additional codicil, if he 
 obeyed and took the probate, there was an end of all pro- 
 
 (J) BelKn-v. Skeates, 1 Sw. &Tr. (d) Coote's Prob. Prac. 7th ed. 
 
 148 ; 27 L. J. P. & M. 56. 241 ; G. Browne's Prob. Prac. 262. 
 
 (c) Coote and Tristram, 227. (e) Ibid. 235 ; ibid. 269 etseq. 
 
 X X 2 
 
676 WILLS OF PERSONAL PROPERTY. 
 
 ceedings ; indeed, a citation to see a Will proved was the 
 only one that necessarily led to contentious proceedings. 
 
 " The forms give four kinds of citations : — 1st, to see a 
 Will proved ; 2nd, to bring in probate ; 3rd, to bring in 
 administration ; 4th, to see proceedings ; and these serve [d] 
 for models for the numerous kinds, such as to accept or 
 refuse grants, to take out probate, where a party has 
 intermeddled, and the like " (/). 
 
 Not by serving citations, then, are causes in the 
 Probate Division now commenced, for by Order II., Rule 
 1, of the Supreme Court of Judicature Act, 1875, it is 
 declared that every action shall be commenced by a writ 
 of summons, which must be preceded by an aflBdavit by 
 the plaintiff, or one of the plaintiffs, in verification of the 
 indorsement on the writ, thus preserving a feature of the 
 citation process alluded to on the next page. The entry of 
 a caveat will, however, still precede the writ of summons. 
 Object and Although the name " citation " as the initiatory step 
 
 citations. ^^ contentious probate business is thus abandoned for that 
 
 of "writ of summons," this latter mode of beginning a 
 probate action appears to have the same operation which 
 the citation formerly had in commencing a suit. Accord- 
 ingly, the object and use of citations, as steps in litigation, 
 may be thus stated ; — "When a person having the superior 
 right to prove a Will or to take out administration, delayed 
 or decHned to do so, the High Court of Justice, at the 
 instance of a person having an inferior right, compelled 
 the first by its process either to take the required grant 
 or to let the others have it " {g). Thus, a residuary 
 legatee cited an executor, and a simple legatee cited either 
 of these to accept or refuse probate ; while persons entitled 
 under the Statute of Distributions to a share in an intes- 
 tate's property cited his widow and nearest of kin, and a 
 creditor might have done the same. And by the present 
 
 (/) G. Browne, 269. This practice is not afifected by the 
 
 {g) Coote and Tristi'am, 181 ; Judicature Acts or Rules, but con- 
 
 Coote, 224 ; Rule 68 Non-Cont. Bus. tinues in force as before. Coote, 231. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 677 
 
 (probate) practice of the High Court, an executor who pro- 
 pounds a Will, may, as before, cite other parties to see pro- 
 ceedings in regard thereto in which they may be interested. 
 (See Kennaway v. Kennaway, ante, p. 672, n. (k). 
 
 Before, however, a person issued a citation, — for in- Affidavit to 
 stance, to compel an executor to prove a Will in solemn or writ of ' 
 form, he must have made an affidavit of the facts of the summons, 
 case and his interest therein (h), which was called the 
 affidavit leading the citation (i) ; but it has been held 
 that a possibility of interest was sufficient to entitle a 
 person to do this (j). 
 
 In case the party cited to appear to propound a paper Non-appear- 
 does not appear within the time limited in the citation g^ed"*^*'^'^ 
 l^writ of sunvmons], the cause shall proceed in default ; 
 nevertheless, the party cited may enter an appearance at 
 any time before a proceeding has been taken in default, or 
 afterwards by leave of the judge or one of the registrars (k). 
 
 The effect of parties who are interested under a testa- Effect of non- 
 mentary paper not appearing to propound it when cited a^dtatbn!^ ^'' 
 [summoned by wrif] to do so, is to cause a grant of ad- 
 ministration to issue, as in the case of an intestacy. The 
 Court will make the grant although the paper is good on 
 its face; but the Court will not pronounce against the 
 document merely on the consent of parties who have not 
 been cited (I). 
 
 The person who cites another to appear in the Probate Party citant 
 Division for any purpose, is called the party citant, and ^^^ '"*®^' 
 the other the citee. Before the Judicature Acts, they 
 answered — where the citation commenced the suit — to 
 plaintiff and defendant respectively in proceedings at 
 Common Law, under which system the plaintiff's first 
 step in pleading was to issue a declaration, or, as it is now 
 termed, the statement of claim, i.e., of his cause of action. 
 
 (A). Rule 68 Non-Cout. Bus. and {j) Kipping y. Ash, 1 Rob. Eoe. 
 
 ISCont. Bus. SeeOrderV.,RulelO, Rep. 270; 4 N.-C. 177. 
 Jud. Act, 1875. (i) Rule 29, Cent. Bus. 
 
 (i) See previous page as to filing (l) Morton v. Thorpe, 3 Sw. & 
 
 affidavit before issuing writ of sum- Tr. 179 ; 32 L. J. P. & M. 174. 
 
678 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 In ordinary 
 cases plaintiff 
 delivers 
 statement of 
 claim ; 
 
 but the party 
 who propounds 
 a Will delivers 
 statement of 
 claim. 
 
 Plaintiff 
 delivers plea 
 in suits for 
 revocation of 
 protate. 
 
 Two Wills 
 may he pro- 
 pounded — one 
 by plaintiff 
 and the other 
 by defendant. 
 
 Practice. 
 
 In ordinary cases in the Probate Division it belongs to the 
 plaintiff to deliver the statement of claim, and to the 
 defendant to deliver the plea [statem&nt of defmce], as in 
 Common Law practice ; but the party propounding the 
 alleged last Will and Testament of the deceased shall, in 
 all cases^— even if defendant in the suit — deliver the state- 
 ment of claim, and the party opposing the same deliver 
 the statement of defence (m). Accordingly, where for an 
 instance an executor is cited to bring in probate of his 
 testator's Will with a view to the probate being revoked, 
 he, the citee, will deliver a statement of claim propounding 
 the Will, and to* this the plaintiff, or party citant, will plead 
 denying the validity of the Will, or the testator's capacity 
 to make it, or alleging fraud, &c., &c. 
 
 In suits [actions now] for the revocation of probate, as 
 before remarked, it is always the province of the plaintiff 
 — who is only nominally such — to deliver the statement 
 of defence, while in ordinary cases the parties retain their 
 usual characteristics as plaintiff and defendant (n). 
 
 One party may propound a Will or testamentary script 
 in his statement of claim, and the other party may in 
 his statement of defence allege the existence of another 
 Will; but with the statement must be delivered to the 
 opposite party and filed in the registry a declaration pro- 
 pounding such other Will or testamentary script to which 
 the opposite party shall plead. The statements of defence, 
 except by leave of the judge to be obtained on summons, 
 are restricted to the following allegations : — 
 
 1. Undue execution. 
 
 2. That the testator was of unsound mind. 
 
 3. Fraud. 
 
 4. Undue influence. 
 
 5. Ignorance of testator concerning the contents of 
 
 the Will (o). 
 
 («i) Rule 33, Cont. Bus. See 
 Order XXL r. 5 under Jud. Act., 
 1875. 
 
 {n) Eule 33, Cont. Bus. But 
 
 read Brandrefh v. BrandretTi, 2 Sw. 
 
 & Tr. 446 ; 31 L. J., P. & M. 153. 
 
 (o) Rule 40, Cont. Bus. (1866.) 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 679 
 
 Within fourteen days after the delivery of the last Party deliver- 
 pleading in the cause, the party who brought in the declar- of claim 
 ation is to deliver the ISSUE to the other side, which, alsodeUvers 
 
 ' ' issue. 
 
 however, is not to be filed (p). 
 
 With this he may give notice of the mode of trial he Notice of trial, 
 will request the Court to adopt in the case, and the Court 
 on hearing both sides on motion will direct in what mode 
 the case shall be heard (p). 
 
 This may be in three ways, either before the President Cause may be 
 alone, with a jury, or before a Judge of Assize, by virtue on^™\hree^^ 
 of an issue directed to any of the Superior Courts of Com- modes. 
 mon Law {q), or now to the Common Law Divisions of the 
 High Court of Justice. (But see ante, pp. 411, 412, and 
 note (n), ante.) 
 
 At the time a party delivers his statement of claim — Affidavit of 
 now within six weeks after the defendant appears — he ^°"^ ' 
 also files what is termed an affidavit of scripts, that is an 
 affidavit of all the testamentary documents (r) made at 
 any time by the testator, and which are in the plaintiff's 
 custody. Should the defendant appear, both he and the 
 plaintiff file affidavits of scripts (s). The statement of claim 
 will then, in ordinary cases, be delivered to the defendant, 
 or as we have seen, they may exchange statements of 
 claim, as in cross actions, after which the parties may — but Other 
 only by permission of the Court — give in other pleadings ^ ^ '"^' 
 corresponding respectively to replication, rejoinder, surre- 
 joinder, rebutter, or demurrer, just as at Common Law (t). 
 
 The question in dispute might also have been brought Motion and 
 before the Probate Court in two other ways ; namely, by petiti""!- 
 MOTION, or by PETITION, as well as by a regular suit. 
 
 A motion may still be made before this Division of the Motion. 
 High Court in contentious or in non-contentious business, 
 
 {p) Rules 46, 47 Cent. Bus. (t) Rule 39, Cont. Bus. See, 
 
 Iq) 20 & 21 Vict. 0. 77, s, 35. however, Order XIX. r, 12, Order 
 
 {r) As to what are deemed "tes- XXII. r. 11, Jud. Act, 1875, Order 
 
 tamentary documents, "see Rule 31, XXIV. rr. 1, 2, as to reply and 
 
 Cont. Bus. subsequent pleadings, and Order 
 
 (s) Rule 80, Cont. Bus. XXV, as to the close of pleadings. 
 
680 
 
 WILLS OF PERSONAL PEOPERTY, 
 
 Petition. 
 
 What questions 
 brought 
 forward by 
 petition. 
 
 The nature of 
 the non-con- 
 tentions busi- 
 ness of the 
 Probate 
 Division. 
 
 and may be either ex parte, or after notice has been given 
 to the other side. If a simple motion be made -without 
 further proceedings, "the matter then comes under the 
 head of non-contentious business " (u). 
 
 " The proceedings by petition were very simple, and con- 
 sisted of short statements of the cases relied on by the con- 
 tending parties, supported by affidavits " {u). The only 
 difference between proceeding by petition or by declaration 
 [now statement of clavm] and plea [statement of defence'] 
 was, that in the former case the matter m,ust have been 
 decided before the President alone, while in the latter, it 
 might have been decided by a jury or by the President (v). 
 
 Any question arising in a cause, and not being one of 
 interest, domicile, or other matter usually brought before 
 the Court by declaration and plea, might have been 
 brought before the Court by petition {x). 
 
 The foregoing is a slight sketch of the modes in which 
 the jurisdiction of the Probate Division is set in motion 
 in contentious cases. As regards its non-contentious 
 business, we may observe that it is chiefly made up by the 
 examination by the registrars of Wills, codicils, and other 
 testamentary papers presented for probate, in perusing 
 affidavits of witnesses, in examining into interlineations, 
 alterations, erasures, and obliterations ; of examining deeds 
 and other documents referred to in Wills, with a view to 
 their rejection or incorporation into those Wills : also of 
 documents that have been affixed to Wills ; the appear- 
 ances of the papers themselves, the examination of Wills 
 of married women ; the administering of oaths to executors 
 and administrators, identifying parties, the marking of 
 testamentary papers, taking renunciations of probates 
 and Letters of Administration, transmitting notices of 
 caveats, issuing citations and subpoenas, examining Wills 
 
 (u) Coote Prob. Prac. 223. See 
 Rule 6, Non-.Cont. Bus. astooom- 
 jiulsory motions. 
 
 (v) Per Sir J. Hannen in Pepper- 
 
 come V. Gardner, L. E. 3 P. & D. 
 149. 
 
 (os) Rule 64, Cent. Bus. As to 
 Domicile, see ante, p. 233, et seq. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 681 
 
 of blind and illiterate testators, alterating grants, taxing 
 bills of costs, and so forth. 
 
 The Probate Act of 1857 was amended in 1858, by Amendment 
 "The Confirmation and Probate Act, 1858" {y), and ^''*^- 
 again in the same year by " The Court of Probate Act, 
 1858 " {z). 
 
 For the due carrying out of the purposes of these Rules of Court, 
 statutes, rules have, from time to time, been drawn up (a)^ 
 namely, those which take effect from September 1, 1862, 
 applicable to the Non-contentious business of the Probate 
 Division; those of the same date, to the Contentious 
 business, and the Rules of March, 1863, for the guidance 
 of the District Registries, of which there are forty-one, all 
 enumerated in schedule (A) attached to the Act of 1857. 
 
 The rules for the Principal Registry were amended by Amendment 
 additional rules and orders, dated January 11, 1866. 
 
 By the Judicature Act, 1875, section 18, it is enacted Rules of the 
 that all Rules and Orders of Court in force at the time of probate re- 
 the commencement of this Act in the Court of Probate, *f™«'* """^^"^ 
 
 the Judicature 
 
 subject to the terms oi the schedule to the Act, and Act, 1875. 
 Rules of Court hereafter to be made .... shall remain 
 and be in force in the High Court of Justice. It is also 
 declared that the President for the time being of the 
 Probate, Divorce, and Admiralty Division of the High 
 Court of Justice shall retain, with regard to non-con- 
 tentious or common form business, the powers possessed 
 by the Judge of the Court of Probate, under 20 & 21 Vict, 
 c. 77, sect. 30, and shall retain the powers as to the making 
 of Rules and Regulations conferred by 20 & 21 Vict. c. 85, 
 sect. 53. 
 
 Rule 11 of Order XVI., of the Judicature Act, 1875, Bat suhject to 
 states that, subject to the provisions of the Act and the ordCT'xv/" 
 rules under it, the provisions as to parties, contained in 
 
 (y) 21 & 22 Vict. c. 56. lately binding on the Court. See 
 
 (a) 21 & 22 Vict. c. 95. the case of Loftus, 3Sw. &Tr. 307 ; 
 
 (a) It is apprehended that these 33 L. J. P. & M. 59, in which No. 50 
 
 rules in cases where it is expedient of the Non-Contentious Rules was 
 
 to depart from them, are not abso- departed from. 
 
682 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 Wto may be 
 plaintiffs or 
 defendants in 
 probate 
 actions. 
 
 County Court. 
 
 Application for 
 probate and 
 letters of 
 administra- 
 tion may in all 
 cases be made 
 at the principal 
 registiy of the 
 Probate 
 Division. 
 
 section 42 of 1.5 & 16 Vict. c. 86, shall be in force as to 
 actions in the High Court of Justice. By Eule 12, sub- 
 ject as aforesaid, in all Probate actions the rules as to 
 parties, heretofore in use in the Court of Probate, shall 
 continue to be in force. Sect. 21 of the Judicature Act, 
 1875, provides for the retention of existing procedure of 
 Courts when not .inconsistent with this Act or Rules of 
 Court. As the Common Form business of the Court of 
 Probate is not inconsistent with the above statute or any 
 Rules of Court, that form of procedure, tnutatis mutandi, 
 remains unaltered. The mode of conducting the con- 
 tentious business is alone affected by the Judicature Act, 
 but only so far as to make it uniform with the procedure 
 of the High Court in all its other Divisions. 
 
 " In an action in the Probate Division of the High Court 
 of Justice, the parties entitled to be plaintiffs are, 
 primarily, the executor ; failing him, the party entitled 
 to the residue, or a legatee named in the Will, or other 
 party interested under the Will, or the representatives of 
 these persons. Any party whose interest may be adversely 
 affected by the Will may be a defendant, and a possibility 
 of interest is sufficient to entitle a party to appear in this 
 character" (6). 
 
 Where a testator's personalty is under the value of 
 £200, or his realty under that of £300, the County Court 
 Judge of the district in which the deceased lived, may, in 
 contentious cases, exercise the jurisdiction of the Probate 
 Division of the High Court (c). 
 
 It is not obligatory on any person to apply for probate 
 or administration through any County Court, or to any 
 district registry, but in every case such application may be 
 made through the principal registry of this Division in 
 London wherever the testator or intestate may at the 
 time of his death have had his fixed place of abode (d). 
 
 (J) See Charley on The Judic. 
 Acts, SiS, 2nd ed. 
 
 (c) 21 & 22 Vict. c. 95, s. 10. 
 But see 28 & 29 Vict. o. 99 ; 30 & 
 
 31 Vict. c. 142, the Small Intestacies 
 Act, mentioned, ante, p. 637. 
 
 [d) 20 & 21 Viot. c. 77, s. 69 ; 
 and see 21 & 22 Vict. c. 95, ss. 12, 20 
 
PRACTICE OF THE HIGH COURT IIST PROBATE MATTERS. 
 
 683 
 
 / 
 
 It is, however, competent to the Probate Division in Probate 
 certain cases to send a cause to a County Court to be ad- gend a cause 
 judicated upon, in which case the judge of the latter to County 
 tribunal will proceed as if the cause had been originally 
 commenced before him (e) ; but the Probate Division, 
 however, like the former Court of Probate, cannot in such 
 a case entertain an application for a new trial (/). 
 
 Grants of probate, of simple administration, and adminis- 
 tration cum, testamento annexo are styled according to 
 circumstances ; 
 
 Including grants limited to — 
 
 1. A particular estate, person, 
 or document. 
 
 2. Property of married women. 
 
 3. Goods unadministered by a 
 previous executor or ad- 
 ministrator. 
 
 4. The period of absence of exe- 
 cutor or administrator. 
 
 5. The period of minority of per- 
 son entitled to grant. 
 
 6. The duration of lunacy. 
 
 7. Carrying on suit. 
 
 8. To collecting a deceased per- 
 son's effects. 
 
 9. The duration of a litigation. 
 10. The rest of goods remaining 
 
 unadministered. 
 
 Certain effects specially ex- 
 cepted. 
 
 And those called supple- 
 mental or cessate grants. 
 
 (a.) General probate or 
 administration. 
 
 (b.) Limited or special 
 probate or ad- 
 ministration. 
 
 (c.) Double probate. 
 
 11. 
 
 12. 
 
 General Probate or Administration is where the General grants, 
 grant embraces the whole Will or property of the deceased 
 
 (e) See note (d), p. 682. 
 
 (/) See ZeaUey v. Veryard, L. R. 
 
 1 P. &. D. 195 ; 35 L. J. P. & M. 
 
 127, and 20 & 21 Vict. o. 77, s. 58. 
 
p84 
 
 WILLS OF PERSONAL PROPERTY. 
 
 without any reservation whatever as to time, estate, or 
 any other object : in short the grant is general when it 
 " places the grantee fully in the position of the de- 
 ceased " (g). 
 
 Limited 
 
 grants. 
 
 Probate of 
 married 
 woman's Will 
 is a limited 
 one, except 
 ■where hus- 
 band's consent 
 makes it 
 
 Property 
 immaterial. 
 
 Construction is 
 
 " Limited Grants may be divided into three classes 
 namely, those which limit the representation : — 
 
 1st. In estate : 
 
 2nd. In time ; 
 
 3rd. To a particular object " {h). 
 So that, if the grant goes only to some specific property 
 mentioned by a testator, or to such property as he had a 
 disposing power over, or if it be only to operate during a 
 certain time, or on some particular object, the probate or 
 administration in such a case would be denominated 
 limited. 
 
 In cases where probate of the Will of a married woman 
 made in exercise of a power of appointment is granted to 
 an executor who is not her husband, the probate would be 
 limited to the property with which she was competent to 
 deal, unless her husband were to consent to a grant of 
 general probate being made to the executor (i) ; for 
 " though a feme has power to make a Will, yet the baron 
 shall have administration " {j ). 
 
 Whether a married woman exercises her right of making 
 a Will, by virtue of a Power, a deed, or any other instru- 
 ment, or by the consent of her husband ; or whether the 
 property disposed of be savings from her pin money, or 
 accumulations from a trust fund, or be the corpus of that 
 fund, in all these cases probate of her WUl will be 
 limited Qc) ; and in such a manner too, as will leave 
 
 (g) G. Browne's Prob. Prac. 214. 
 The present writer has found it 
 more convenient to treat of grants 
 limited to time after the others. 
 
 (h) See previous note. 
 
 (i) Toller, Exors. 67. 
 
 0) iJ. V. BettesworOi, 2 Strange, 
 891. 
 
 (i) See Coote, 143-145. Adminis- 
 tration of a married woman's effects, 
 with Will annexed, is a limited 
 administration. Rule 15. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 685 
 
 questions of construction for the decision of the Chancery for the Chan- 
 Division of the Supreme Court (I). h7c. 'j^?™ 
 The Probate Division cannot look at a Power exercised ^^^ tj,a p^g. 
 in a married woman's Will ; a mere allegation that she had •>**« Division 
 
 iT> • ir> ■ f 1 f • <"i-i 1 oannot look at 
 
 sucQ rower is sufficient ; for the function oi this branch a Power in 
 of the High Court is merely to see that the instrument ™*"'«<J 
 
 o _ ■' woman s Will. 
 
 she has executed is an effectual one (m). 
 
 An example of a limited or special probate is where a Limiting 
 testator appoints an executor for the purpose of adminis- 
 tering only a portion of his effects ; as for instance, all the 
 property which he may possess in the public funds, or a 
 trust fund. In this case, the executor's function being 
 limited, the probate would be limited also to the particular 
 effects mentioned in the Will. 
 
 The following question now naturally presents itself. 
 If probate or administration be granted of a portion of a 
 testator's or intestate's effects, what becomes of the rest ? 
 The inquiry may be answered thus : — If there be another Grants of 
 executor appointed to act after the special executor, then, P™bate or 
 
 '■ '■ 1, , administration 
 
 in that case, a second probate would be granted to such cceurorum. , 
 other executor; and this would be called probate cceterorum, 
 honorwm, or shortly, cceterorum, that is, of the rest of the 
 goods, not included in the first probate. If, however, there 
 be no other executor named, or if named has renounced, 
 then the residuary legatee, if there be one, or some other 
 person duly entitled by interest, may take out adminis- 
 tration cceterorum cum testamento annexo ; that is, 
 with the Will attached to the grant for his guidance. 
 
 If a testator appoint a special executor for a particular Grant of 
 purpose, and as to the rest of his property dies intestate, *^"|.^tm*tr 
 in such case, the next of kin, after the special executor has next of kin 
 taken his limited probate, will be entitled to the grant ^nt'™'*^*^ 
 cceterorum,, and the rule is the same when a limited ad- executor. 
 ministration, and not a limited probate is granted first. 
 
 (I) Ledgard v. Garland, 1 Curt. Hanhey, 2 Moo. P. C. 342, and 
 
 Euo. Rep. 286; see ante, p. 559, as to the true 
 
 (m.) Coote, 143, citing Lord function of. the Probate Division 
 
 Brougham's judgt. in Tatnall v. H. C. J. 
 
686 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Residuary 
 legatees are 
 generally joint 
 tenants, and 
 so enjoy the 
 
 or right of 
 Bnrrlvorship. 
 
 Civil Law is 
 against sur- 
 vivorship in 
 
 Doctrine of 
 Equity on the 
 point. 
 
 The reader is here again reminded of the difference in 
 law, between the expressions " next of kin," and " next of 
 kin or blood under the Statutes of Distribution " — to 
 which reference has been made in a former part of this 
 work (n) — ^that is to say, the term " next of kin " stand- 
 ing alone, and unexplained in a Will or settlement, means 
 only the person "nearest of kin or blood" (o), to the 
 propositus. 
 
 We have in the foregoing remarks used the expression 
 residuary legatee, but it is competent to a testator to 
 appoint more than one such legatees, in which case the 
 persons named would be called joint residuary legatee^ (p), 
 and their respective shares would of course be equal. 
 Being in the position of joint tenants, the share of each 
 one dying in the lifetime of the others survives to them, 
 until the last survivor takes "the whole (q). The rule of 
 the Civil Law is against survivorship in the matter of 
 legacies, and it was once doubtful whether this incident 
 of joint tenancy at Common Law could be applied to 
 legacies. Sir Joseph Jekyll, M. R., however, in 1729, 
 established the Common Law rule in this respect in his 
 judgment in Gray v. Willis (r), wherein he says : — "I do 
 not see that a Court of Equity, should even in case of a 
 legacy, judge according to the Civil Law, but ought rather 
 to pursue the Common Law, which is the general law of 
 the land ; for all legatees are volunteers (s), and ought to 
 stand or fall by the rules of the Common Law." 
 
 (») p. 556, n. (*). 
 
 (o) JSlmsley v. Young, 2 My. & 
 K. 82 and 780. But read Halton 
 V. FosUr, L. R. 3 Ch. 605 ; 37 L. J. 
 Ch. 5i7, and see post, p. 697, 
 n. (w). To enable the next of kin 
 generally to participate, there must 
 he in the Will or settlement an 
 express reference to the Statute of 
 Distribution. Read Eagles v. Le 
 Breton, L. R. 15 Eij. 148 ; 42 L. J. 
 Ch. 362. 
 
 (p) ksiTi. Lintliwaite v. Oalloway, 
 2 Lee, 414 ; and In the goods of 
 Scarhorough, 30 L. J. P. & M. 85. 
 
 (q) Morley v. Bi/rd, 3 Ves. 628 ; 
 Buffar V. Bradford, 2 Atk. 220. 
 See ante, pp. 504, 516, 521. 
 
 (r) 2 P. Wms. 528. 
 
 (s) A volunteer in law is one who 
 takes a gift or benefit under a volun- 
 tary Will or deed without giving . 
 any consideration for the same. See 
 hllison V. Ellison, 1 L. C. Eq[. 245. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS, . 687 
 
 Where persons are residuary or other legatees in com- 
 mon, there is no survivorship, except in certain cases (t) ; 
 and it should be observed that Equity prefers construing 
 a bequest as one in common, rather than as creating a 
 joint tenancy (u). 
 
 Previous to this digression, we observed that probate or 
 Letters of Administration with a Will annexed, are some- 
 times limited in their operation to a portion of a deceased 
 person's effects ; and we had also seen how the rest of the 
 effects not comprised in the first grants were to be disposed 
 of. Such grant would, when following the limited or 
 special grant, be termed a grant coBterorum : if, however, 
 the grant cceterorum came before the limited or special 
 grant, then, instead of being called by this name, it would 
 be called by another, that of save and except. In this 
 case, the grant would be general, save and except the 
 particular objects excluded by the Will. 
 
 From what has been said, it will be perceived that Difference 
 between a grant of probate or administration save and ^^^^t saw* <m(i 
 except, and a grant ccderorum, the difference lies only in except, and 
 the order in which they are taken. Thus, if A. be an ™^° ""^'^™- 
 executor for a special purpose or fund, and B. an executor 
 for all other purposes, B. takes out probate, save and 
 except the special fund or duty, and in practice he receives 
 the grant before A, who has merely the particular fund or 
 purpose to attend to. 
 
 But if A., the executor of the limited fund, had 
 taken out probate first, then the grant to B. would have 
 been cceterorum, which obviously amounts to the same 
 thing as the other ; in fact, these two grants are " made 
 for the same purposes, and under the same conditions" (x). 
 
 (t) Page v. Page, 2 P. Wms. 489 ; has been as stated in the text, The Law 
 
 but see 1 Viot. o. 26, s. 33. towards tenancy in common, both favours 
 
 {u) Fisher v. Wigg, 1 P. Wms. as regards land and personalty. See tenancy in 
 
 14 ; Owen v. Owen, 1 Atk. 494. also JolUffe v. Sast, 3 Bro. C. C. <=°«'™°'i 
 
 Before these cases the law rather 25; but read Zafo v. Craddoch, and 
 
 inclined in favour of joint tenancy ; the notes thereto, 1 L. C. Eq. 179. 
 but since the latter case — and as (x) Coote, Prob. Prac. sects, vi. 
 
 Equality is Equity— the tendency vii. 160-162. 
 
688 
 
 WILLS OF PBESONAL PROPERTY. 
 
 Difference 
 between a 
 grant ccetero- 
 rum and save 
 cmd except. 
 
 Grants of 
 creterorum and 
 eave and except 
 nearly con- 
 current. 
 
 Executor of 
 executor. 
 
 But although pi-obate save and except, unlike that of 
 cceterorum, usually precedes the limited probate or ad- 
 ministration, " there is no reason though a limited grant 
 has been made, that the following grant should not be 
 save and eocoept instead of ccBterorwm" (y). Here is a 
 case (z) which may illustrate our meaning : — M., the wife 
 of S., was empowered by articles executed before marriage, 
 to dispose, by deed or Will duly executed, of £1000 of 
 her fortune after the death of S., who was to receive the 
 interest thereof during his life. She made a valid Will, 
 appointing two executors, B. and F. She died in the 
 lifetime of S., her husband, and the executors propounded 
 her Will which was opposed by S. Sir J. Lee decreed to 
 B. and F. administration cum testa/mento annexo (a) of 
 the Will made under the Power, and gave a general grant 
 ccBterorum to the husband. Here, we have the limited 
 or particular grant first, and then the grant cceterorum ; 
 but the latter might have been save and except, and of 
 course, had the husband taken his grant first, it would 
 have been of this kind, while that decreed to B. and F. 
 would have been the particular grant, or the grant limited 
 to the £1000. 
 
 " The grant cceterorum and save and except are made 
 under similar conditions, and general and limited grants 
 may issue almost together " (b). 
 
 By a peculiar rule of the law of England, before ad- 
 verted to in this work, the executor of my executor, if the 
 latter have taken out probate to me, is, to all intents and 
 purposes, as much my executor and representative as my 
 immediate executor was (c) ; and the office may descend 
 ad infinitum^ in the same manner ; provided there be no 
 
 (y) Coote Prob. Prac. 160. 
 
 (z) Soxley v. StMbmgton, 2 Lee, 
 537, cited in Coote. 
 
 (o) The reason why the Court 
 did not grant probate in this case 
 was because the testatrix had ap- 
 pointed executors, which the Power 
 
 did not authorise her to do. 
 
 (i) G. Browne's Prob. Prac. 242. 
 
 (c) 2 Black. Comm. 506 ; 25 
 Edw. in. st. 6, c. 5 ; In the goods of 
 Larimer, 2 Sw. & Tr. 471 ; 31 L. J. 
 P. & M. 189. See also anU, p. 370 
 n. (p). 
 
PRACTICE OF THE HIGH COURT IIT PROBATE MATTERS, 
 
 intestacy, or failure to take probate of the preceding exe- 
 cutor's Will. The intestacy of an executor would obviously 
 break the series ; and although no new probate of the 
 original testator's Will is necessary {d), yet the omission 
 to prove that of any subsequent testator, would cause a 
 discontinuance (e). 
 
 The above rule embodies the principle of what is techni- Cliam of 
 cally called the chain of representation, a matter intimately "^^i"^^^™ * '""'• 
 connected with another species of limited probate, or more 
 commonly of administration cum, testamento annexo, 
 known as a grant de bonis nan administratis; that is, 
 of the goods left unadministered by a former executor or 
 administrator. 
 
 This grant de bonis nan, as its name indicates, is a Grant de bonis 
 limited one, confined in fact to effects vested in a deceased * '"" ® °°®' 
 executor or administrator, in his representative capacity, 
 and which, from death or some other sufficient cause, he 
 was prevented from dealing with. 
 
 To whomsoever probate or administration de bonis non Grantee de 
 is granted, such person is at once in the position of repre- positira of'^ ™ 
 sentative of the original testator or intestate (/). There- original 
 fore, if an executor or administrator leave a valid Will, the 
 executor of that Will, provided his testator have taken Probate of 
 out probate of the original testator's Will, becomes at once "^^^^ y^^ 
 executor of the latter instrument, and such would be the must be taken 
 case, however far off the original testator might be from 
 the last testator. From this we see that the office of Office of 
 executor may be traced upwards, step by step, to its beTraoed™^^ 
 original source, as well as transmitted downwards to any "P'fards or 
 
 . ^ . . , downwards. 
 
 extent. A svne qua non, however, to this transmission by p^^^g^j^ ^yjij 
 an executor of his own executorship is, we repeat, the must be 
 proving his testator's Will ; and we have seen that, if the 
 
 prored. 
 
 (d) WanJcford v. Waiikford, 1 several co-executors and they all 
 Salk. 309. prove, the interest goes only to the 
 
 (e) See Comher's case, 1 P. Wms. executor of the last survivor of 
 766 ; Shep. Touch. 464, and 21 & them. Toller on Exors. 69. 
 
 22 Vict. c. 95, 3. 16. It must be (/) Toller, 117. 
 
 borne in mind that if there be 
 
690 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Statute Law 
 on the subject 
 of interme- 
 diate probate. 
 
 General pro- 
 position of 
 law. 
 
 Executor may 
 appoint one 
 executor for 
 his own Will 
 and another 
 for his tes- 
 tator's Will. 
 
 Agreement by 
 executor to 
 renounce is 
 not binding in 
 any case. 
 
 first testator's Will be not proved, there can be no chain 
 of representation. The following is the Statute Law on 
 this subject to which reference has been made : — 
 
 " Whenever an executor appointed in a Will survives 
 the testator, but dies without having taken probate, and 
 whenever an executor named in a Will is cited to take 
 probate, and does not appear to such citation, the right of 
 such person in respect of the executorship shall wholly 
 cease, . and the representation to the testator and the 
 administration of his effects shall and may, without any 
 further renunciation, go, devolve, and be committed in 
 like manner • as if such person had not been appointed 
 executor " (g). 
 
 From what we have previously stated we arrive at the 
 general proposition of testamentary law, that an executor 
 of an executor, in however remote a series, has the same 
 interest in the goods of the first testator, as the first and 
 immediate executor had, provided the latter proved the 
 former's Will, and provided intermediate Wills have 
 existed and been duly proved. 
 
 It is competent to an executor to nominate one exe- 
 cutor to carry out the provisions of his own Will, and 
 another executor to carry out those of his testator's Will. 
 This is, however, an unusual proceeding, for it is the duty 
 of an executor himself to perform the obligations under- 
 taken by him, and not, except in cases of emergency, to 
 deliberately delegate their performance to another person, 
 hence we rarely hear of an executor de bonis non, but 
 more usually an administrator. And it must be re- 
 membered that although the office of executor may on the 
 one hand be renounced, or, on the other, duly transmitted 
 by Will, yet no valid agreement can be entered into by an 
 executor to renounce his office, even where it is agreed 
 that the renunciation shall be made a rule of Court (h). 
 
 (g) 21 & 22 Vict. c. 95, s. 16. 
 {h) Bargreaves v. Wood, 2 Sw. 
 & Tr. 602 ; 32 L. J. P. & M. 8. 
 
 Note. — An executor may by per- 
 mission of the Coait retract his re- 
 nunciation in certain cases. See 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 691 
 
 Nor can the ofiBce be assigned over to another person There cannot 
 because it is a personal trust (i) ; and an executor cannot paxtiai accept- 
 partiallv accept the office ; his acceptance must be entire ™°® °} , . 
 
 •* €/ i. ■ I i executorship. 
 
 or not at all (k). 
 
 In speaking of the chain of representation and its con- Gfrant de ionis 
 nection with the grant de bonis non, we remarked that ^^l^^l^^ 
 the grant was more commonly an administi-ation than a tion. 
 probate. The following imaginary case will clearly show 
 why this is : — A. makes a Will, appoints B. his executor, Case, 
 and dies in B.'s lifetime. B. makes a Will, appoints C. 
 his executor, and dies in C's lifetime before he has dis- 
 tributed A.'s effects. Here there are bona non adTninis- 
 trata — goods unadministered. Who shall administer them ? 
 By the chain of representation, C. is A.'s executor, and, 
 therefore, he will perform the duty that devolved upon 
 B., but which B.'s death prevented him from performing. 
 We have supposed the Wills in question to have been duly 
 proved, A.'s Will by B., and that of B. by C, which being 
 the case, C. can effectuate the wishes of both testators, 
 without anything further being necessary. But suppose 
 that, instead of leaving a Will and only one executor, B. 
 had nominated two executors, to administer his own pro- 
 perty, and the unadministered goods of his testator, A. 
 respectively. In such a case, the Court would grant two 
 probates, and the latter would be a proba,te de bonis. 
 There is nothing illegal in such an arrangement as the Probate & 
 above, but its very nature indicates, what is indeed the *'^** '^" ^^"^ 
 
 ' _ •' . . uncommon. 
 
 fact, that it is rarely met with in practice (l). 
 
 We now come to the most usual state of circumstances The most usual 
 under which the grant de bonis issues. Taking the same in^^tieif^'^^ 
 letters as before; suppose that B. dies wholly intestate, fioni* issues, 
 that is, leaving nothing in the shape of a testamentary 
 paper behind him ; who then would administer the bona 
 non adminiatrata of A. ? It might appear at first sight, 
 
 Coote, 221, 7th ed. citing In ila (i) Vaugh. 182. 
 
 goods ofBadmckch, 3 Sw, &Tr. 466 ; (k) FowUr v. Coohe, 1 Salk. 297. 
 
 33 L. J. P. & M. 179. (Q G. Browne's Prob. Prac. 217. 
 
 Y Y 2 
 
693 
 
 "WILLS OF PERSONAL PROPERTY. 
 
 AdminiBtra- 
 tor's aiathority 
 derived from 
 Court, that of 
 executor from 
 Will. 
 
 Office of ad- 
 jninistrator of 
 executor. 
 
 Executor of 
 administrator, 
 and adminis- 
 trator of ad- 
 ministrator 
 does not 
 descend. 
 
 Eules by which 
 Court is 
 governed in 
 making grants 
 de bonis. 
 
 Administra- 
 tion issues 
 alone, or with 
 Will annexed. 
 
 Simple or 
 general ad- 
 ministration. 
 
 that the administrator of B. must be the person ; but this 
 is not Tiecessarily so, for the property of A. was only vested 
 in B. in auter droit as executor, and an administrator's 
 appointment is wholly by the Court, and, in certain cases 
 according to its discretion (m), whereas, that of executor is 
 by the confidence of the testator, from whose Will, and 
 from that alone, he derives his authority (n). 
 
 For this reason neither the title of an administrator of 
 an executor, that of the executor of an administrator, nor 
 that of administrator of an administrator, can ever de- 
 volve upon another person by right of succession, or by 
 transmission, since not one of these offices is founded in 
 confidence or trust reposed by a deceased person and 
 expressed in his Will (o). 
 
 The answer to the question suggested above as to the 
 proper person to administer to A., is very concisely given 
 in Coote's Probate Practice, where it is stated that — " In 
 making grants de bonis, the Court is governed by the 
 same rules which apply to original grants, and will grant 
 administration, with or without a Will annexed, of the 
 deceased's unadministered effects to the same persons 
 only who have a right or interest sufficient to have entitled 
 them to original grants, if they had applied for them, the 
 executor of course being excepted " (p). 
 
 We must therefore consider what are the rules, and who 
 are the persons referred to in the above extract. It will 
 be remembered that Letters of Administration issue, either 
 alone, or with some testamentary instrument annexed to 
 them. The former proceeding takes place when a person 
 dies wholly intestate — that is, with no Will whatever — 
 in which case the administration is termed simple or 
 general (5), and as to when administration with the Will 
 
 (m) 21 Hen. VIII. c. 5 ; 20 & 21 
 Vict. c. 77, a. 73 ; In the goods of 
 Carr, L. E. 1 P. & D. 291. 
 
 (n) WoolUy v. Clarh, 5 B. & Aid. 
 744, judgt. of Abbott, 0. J. K. B. 
 See also Comber's case (judgt. of Ld. 
 Macclesfield), 1 P. Wms. 766, and 
 
 ante, p. 457. 
 
 (0) 2 Black. Com. 506. See ante, 
 p. 583. 
 
 {p) Coote, 163; 1 Wms. Exors. 
 Pt. 1, bk. 5, eh. 3, § 2, 471, 474. 
 
 (q) " He only can prove the Will 
 who by the WiU is constituted exe- 
 
PRACTICE OP THE HIGH COURT IN PROBATE MATTERS. 693 
 
 annexed is granted, see ante, p. 60. We will first con- 
 sider the practice of the Probate Division of the High 
 Court of Justice, in cases of total intestacy. 
 
 Now, at Common Law, the name " administrators " was No adminia- 
 unknown ; they were called " executors for administra- called at 
 tion," or "deputies:" their present designation was Common Law. 
 created, or rather indicated, by an Act of Parliament 
 passed in the reign of Edward III. (r), and which directs 
 that in the event of a person dying intestate, the Ordinary Origin of the 
 shall depute the next and most lawful friends of the intes- 
 tate to administer his effects, and that they shall be ac- 
 countable to the Ordinaries as executors. 
 
 It is obvious, however, that there must often have arisen 
 a difficulty in determining who were the intestate's next 
 and most lawful friends ; but in»such a case the rules of 
 the Common Law were to decide the controversy, and one Common Law 
 of these was that in the order of succession, a surviving bus- applied, 
 band or wife was accounted the nearest friend to the other. 
 
 Notwithstanding the rule of law in question, the right Widow 
 of the widow was often set aside in the grants of adminis- ^^° ^ ® • 
 tration, and this state of things went on until the reign of 
 Henry VIII., when the Legislature interfered and passed 
 another statute (s), which, giving more latitude to the 
 Ordinary, enacted that administration should be granted 
 to the widow or next-of-kin of the intestate, or both as Wii^ow 
 the Ordinary should think fit. Unfortunately for the 
 widow, the terms of the Act being disjunctively stated, 
 she was frequently excluded as before ; but for a long Modem mie of 
 series of years it has been considered that the Oi'dinary, ^^^^^^ ^ *° 
 where the administration is not controverted, as by 
 creditors and others, is bound to give preference to the 
 widow in the grant (t), unless he should have a good 
 
 outor ; " which being so, if a, sole SneUing's case, ■ Co. Rep. pt. 5, 83. 
 
 executor died intestate before pro- {s} 21 Hen. VIIL c. 5. 
 
 bate, administration cum testamento (t) Stretch v. Pynn, 1 Lee, 30 ; 
 
 annexe would be granted to the re- Judgt. of Sir G. Lee (1752) ; Hughes 
 
 presentative of the deceased person. v. Cook, 1 Lee, 386, Judgt. 
 (r) 31 Edw. III. St. 1, c. 11 ; see 
 
694 
 
 WILLS OF PERSONAL PROPERTY, 
 
 The discretion 
 of the Presi- 
 dent, how 
 exercised. 
 
 Felony an 
 impediment to 
 being an 
 administrator. 
 
 Forfeiture, 
 &c., for 
 felony now 
 abolished. 
 
 A widow who 
 has re-married 
 may, c<Eteris 
 paribus, ad- 
 minister goods 
 of first 
 husband. 
 
 Creditor has 
 no superior 
 right. 
 
 reason for exercising the discretion given to him by the 
 statute of Henry VIII. Of course that discretion will 
 only be employed in cases where it would be obviously 
 unfair and dangerous to the next of kin and other parties 
 to issue the grant in the usual manner, as where the 
 widow is a lunatic (u) or is a person of openly immoral 
 character {w), or in some cases of laches {£). In Conyers 
 V. Kitson, the appUcant for Letters of Administration was 
 shown to be a bigamist, and the Court not only gave the 
 grant to the intestate's sisters, but also condemned the 
 widow in costs. The widow here was a felon, and felony 
 has always been deemed a legal impediment to any per- 
 son's undertaking the duties of an administrator ; for the 
 statute of Henry VIII. {y) expressly names the next and 
 most lawful friends of -the total-intestate as the parties 
 entitled to Letters of Administration. A recent Act of 
 Parliament (a) enacts that no conviction for treason felony, 
 or felo-de-se, shall cause any attainder or corruption of 
 blood or forfeiture ; but it is submitted that this statute 
 will not remove the disability under which a person con- 
 victed of felony has hitherto existed as to his ineligibility 
 for the office of administrator {z). 
 
 The fact of a widow having married again will not by 
 itself operate to deprive her of her right to administer her 
 former husband's effects, even after a lapse of several 
 years, and notwithstanding that the sole next-of-kin of 
 the intestate is a large creditor of his estate (b). Indeed, 
 the latter circumstance was held, on the contrary, to 
 depreciate the right to the grant as against the widow and 
 any of the next of kin (6). 
 
 It is thus seen that the two statutes (c) above referred 
 
 («) Alford V. Alford, 1 Deane, 
 324 ; but see In the goods of Wil- 
 liams, 3 Hagg. Eco. Rep. 217. 
 
 («;) Gonyers v. Kitsofi,, ibid. 656 ; 
 Chappell V. Chappell, 3 Curt. 429. 
 
 (x) Ooddard v. Ooddard, 3 Phill. 
 Eoc. Rep. 638. 
 
 (v) 21 Hen. VIII. i;. 5. 
 
 (z) As to the effect of felony by 
 an executor, on his right to hold his 
 office, see ante, p. 459. 
 
 {a) 33 & 34 Vict. c. 23. 
 
 (b) Webb V. Needham, 1 Add. Ecc. 
 Rep. 494 (1823). 
 
 (c) 31 Edw. III. St. 1, 0. 11, and 
 21 Hen. VIII. c. 5. 
 
PEACTICE OP THE HIGH COURT IN PROBATE MATTERS. 695 
 
 to are those which mainly guide the Probate Division in 
 determining what person or persons are to administer the 
 effects of a person dying wholly intestate. The discretion Discretion of 
 formerly possessed by the Judge Ordinary has, however, e^e^deFby 
 been extended in a very material manner by the Court of Statute. 
 Probate Act 1857 (d), with regard to the administration o 
 insolvent estates, or of those concerning which any other 
 special circumstances may exist. In these cases the Judge 
 may, in his discretion, appoint an administrator of the 
 whole or a portion of the estate, taking from such person 
 security to whatever amount shall be deemed necessary. 
 
 We may add to these remarks concerning the discre- 
 tion which the President of the Probate, Divorce, and 
 Admiralty Division of the High Court of Justice pos- 
 sesses as to grants of administration, its nature and 
 the right mode of its exercise, the words of a very 
 learned Judge of the old Prerogative Court of Canter- 
 bury (e) :— 
 
 " That discretion must not be arbitrarily or capriciously The exact 
 
 jT_, ,r 11 J- J.- ji nature of the 
 
 assumed, but must be a legal discretion, governed by judge's 
 principle and sanctioned by practice ; in exercising it the discretion. 
 Court is not to be guided by the wishes or feelings of 
 parties, but is to look to the benefit of the estate and to 
 that of aU the persons interested in the distribution of the 
 property. The first duty of the Court, then, is to place it 
 in the hands of that person who is likely best to convert 
 it to the advantage of those who have claims, either in 
 paying the creditors or in making distribution : the primary 
 object is the interest of the property." 
 
 By virtue, then, of the statute of Henry VIII. above- Widow's 
 mentioned, and also by the invariable practice of the "^ ^' 
 Court for a long series of years, we have seen that the 
 widow of a man dying wholly intestate is, cateris paribus, 
 entitled to be his sole administratrix, or at any rate to 
 participate with his next-of-kin in the administration; for 
 
 (d)Wk 21 Vict. c. 77, s. 73. Gremlle, 1 ThiU. 125. 
 
 (e) Sir J. Nicholl in Warmclc v. 
 
696 
 
 WILLS OF PERSONAL PROPERTY. 
 
 At law the 
 right of a 
 widow and the 
 next of kin 
 are equal. 
 
 Foxindation of 
 husband's 
 right to 
 administer to 
 his wife. 
 
 Ordinary's 
 Deputies and 
 Committees at 
 Common Law. 
 
 Husband's 
 right now 
 settled ; 
 
 bat may be 
 set aside in 
 certain cases. 
 
 although at law their title is equal (/), yet she is named 
 first in the statute, and her title is a natural one. How- 
 ever, the Court may, according as the estate may be bene- 
 fited or otherwise, grant administration to either or both 
 at his discretion {g). 
 
 Concerning the foundation of the right of a husband to 
 administer the goods of his wife, there have been a variety 
 of opinions expressed Qi) ; but most probably it rests upon 
 the Common Law. For although it is true that there were 
 no administrators, so called, previous to 31 Edw. III. c. 1 1, yet 
 it was customary before then for the Ordinary to appoint 
 persons to act for him in the distribution of intestates' 
 effects. These, as we have seen, were sometimes called 
 Executors for Administration, and sometimes Deputies or 
 Committees ; so that, as a matter of strict fact, the Act of 
 Edw. III. introduced merely a new name and not a new 
 function, since every executor must necessarily be an 
 administrator of goods {%). The statute in question, then, 
 merely confirming the Common Law practice and affixing 
 another designation to an old office, did not vary the 
 established rule of succession, which allowed a surviving 
 husband or wife to be deemed the next friend to the 
 deceased person. But whether this theory be true or not, 
 " the husband's right to administer, on whatever founda- 
 tion, is now beyond all question " (Jc). 
 
 This general right of the husband may, however, be 
 superseded, under certain circumstances, as where the 
 husband parts with all his interest in his wife's fortune, or 
 where the wife having a Power to make a Will to dispose 
 of her whole property, if she only make an appointment 
 by deed, the High Court of Justice in its Chancery Division 
 
 (f) In the goods of Corser, 31 ject is fully discussed. 
 
 L. J., P. &M. 176. 
 
 (g) Pawtry\. Fawtry, 1 Salt. 36. 
 
 (A) Toller, Exors. 83. 
 
 (i) See Snelling's Case, Co. Rep. 
 pt. 5, 82, and also Mensloe's Case, 
 Co. Eep. pt. 9, 36, where this sub- 
 
 (i) Toller on Exors. 84 ; Johiis v. 
 Bow, Cro. Car. 106 ; 29 Car. IL 
 c. 3, s. 24, extending 22 & 23 Car. II., 
 c. 10 (the Statute of Distributions) 
 in favour of the husband ; Sguih v. 
 Wynn, 1 P. Wms. 381, 
 
PRACTICE OF THE HIGH COUET IN PROBATE MATTERS. 697 
 
 will not interfere on behalf of the husband who loses his 
 
 right to administer (l). The Court will also disregard the Husband's 
 
 husband's usual right for reasons similar to those which when his 
 
 induce it to pass over a widow. As where a man having appointment 
 
 . T !• ^ ■ -r ^ might injure 
 
 committed adultery was divorced from his wife, who after- the estate. 
 wards died intestate, leaving a child, the Court decreed 
 administration to the child's grandmother on the ground 
 of the father's unfitness for the grant (m). 
 
 In another case, a wife, after obtaining a protection Protection 
 order {n) against her husband, died, leaving children, and '^ ^^ ^'^'^' 
 the Court of Probate decreed administration to a guardian 
 selected by them on his giving security (o). 
 
 From the above cases will be seen what are the leading 
 principles or rules by which the Probate Division of the 
 High Court of Justice is guided in granting administra- 
 tion of the goods of an intestate person to his or her 
 surviving wife or husband, and also by what considera- 
 tions it will exercise its discretion as to departing from 
 those rules. We must now consider what would be the 
 course pursued by the Court in the event of the deceased 
 not leaving a husband or a wife, but children or other 
 relatives. 
 
 Now, husband and wife, not being related by blood. Husband and 
 cannot in law — at any rate, in the sense of the Statute of ^v""*')^^*! 
 Distributions (p) — be deemed next-of-kin, or even kin, contemplation, 
 the one to the other (q) ; but they may be made to occupy 
 
 (I) Toller, 84 ; and see In the haye dropped from Judges describ- 
 
 goods of Pine, L. R. 1 P. & D. 388 ; ing the husband as next of kin or 
 
 36 L. J., P. & M. 95. next legal friend of his wife, the 
 
 (m) In the goods of Say, L. E. 1 tenor and bent of modern decisions 
 
 P. & D. 51 ; 35 L. J., P. & M. 3. go to this : if a husband bequeaths 
 
 (n) Under 20 & 21 Vict. e. 85, to his next of kin, that, ^m^/ocie, 
 
 s. 21. does not include his wife ; and it is 
 
 (o) In the goods of Stephenson, quite clear that if a married woman, 
 
 L. E. 1 P. & D. 287 ; 36 L. J., P. under a power of settlement, be- 
 
 & M. 20. queaths to her next of kin, it would 
 
 {p) 22 & 23 Car. II. c. 10. be impossible to hold that, under 
 
 (q) Watt V. Wait, 3 Ves. 244 ; the construction of such a Will, 
 
 ElmsUyY. yowrasr, 2 Myl. & K. 780 ; without more, the husband would 
 
 4 L. J. Ch. 200. "Whatever may take, as next of kin; " — Per Lord 
 
698 
 
 WILLS OF PERSONAL PROPERTY. 
 
 "Kelations" 
 and "family" 
 mean next of 
 kin under the 
 Statute, 
 
 PrimA facie, 
 relations are 
 those con- 
 nected by* 
 blood, and not 
 by marriage. 
 
 Meaning of 
 next of kin In 
 the view of 
 the Court of 
 Probate and 
 whenever used 
 alone. 
 
 Next-of-kin 
 of an intestate 
 and of a 
 testator. 
 
 the jposition of next-of-kin — that is to say, nearest of 
 blood— under the terms of a Will, if it clearly appear to 
 have been the testator's intention that they should do so ; 
 for such intention will repel the rule to the contrary (r). 
 
 It has long been settled that in a Will, the words " re- 
 lations," "kindred," and "family" are synonymous, and 
 comprehend next-of-kin under the Statute of Distribu- 
 tions, and those only; unless the context justifies a con- 
 trary interpretation (s). If the rule were otherwise, as 
 Lord Hardwicke observed on this subject, "it would be 
 endless to find out everybody that were relations " (t). In 
 Thomas v. Hole (u) the testator bequeathed £500 " to the 
 relations of E. H. to be equally divided between them," 
 and Lord-Chancellor King decided that only relations 
 included in the Statute of Distributions were to take 
 under the bequest, and these, as we have noticed, are 
 blood relations, and not those by mere afiSnity, that is by 
 marriage {v). 
 
 The Probate Division, in dealing with the goods of an 
 intestate, allows the term " next-of-kin " only one signifi- 
 cation, namely, nearest of blood — whether whole or half — 
 under the Statute of Distributions, but the present legal 
 meaning of the phrase, when used simpliciter, either in 
 a deed or Will is nearest of kin(w). Again, an intestate's 
 next-of-kin are those only who were such at the time of 
 his death ; and the same may also be said of a testator's 
 
 Eldon in Garrick v. Lord Camden, 
 ii Ves. 376, cited by Turner, L. J., 
 in Milne v. Gilbert, 2 De G. M. & 
 G. 715 ; 5 Id. 510 ; 23 L. J. Ch. 828. 
 See also the cases in note {w) post. 
 
 (r) Garrick v. Owmden, supra. 
 
 (s) Brandon v. Brandon, 3 Swanst. 
 319. See S'now v. Teed, L. E. 9 Eq. 
 622 ; 39 L. J. Ch. 420 j and see 
 ante, p. 513. 
 
 {t) Edge v. Salisbury, 1 Ves. sen. 
 231 ; An;b. 70 ; Grossly v. Glare, 
 Arab. 397, Judgt. 
 
 (m) Gas. Temp. Talbot, 251. 
 
 (ij) As to affinity, see^osJ,p. 707. 
 
 (w) Withy V. Mangles, 10 01. & 
 E. 215 ; Halton v. FosUr, L. E. 3 
 Ch.. 605 ; 37 L. J. Ch. 547. " The 
 authorities are distinct that a limi- 
 tation to next of kin simpliciter, 
 whether it be contained in a Will 
 or settlement, is a limitation to the 
 person nearest in blood to the pro- 
 positus or person from whom it is 
 proposed " to trace succession or 
 reckon degrees of consanguinity. 
 Per Wood, L. J., in the last-cited 
 case. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 
 
 next-of-kin ; but it is possible that next-of-kin under a 
 Will may be persons who, although not entitled to pro- 
 perty at the death of the testator {x), may yet become so 
 in time by the happening of certain events, or at the 
 death of some particular person {y). 
 
 In the absence, therefore, of any expressions of the General 
 testator to the contrary, the term "next-of-kin" would be the'ti^e of*^ 
 held to mean those nearest to him in blood at the time of ^^<^^^- 
 his death {%). And the words "next-of-kin," when used Difference 
 in connection with testacy or intestacy always meaning b^tween^"^ 
 "nearest of consanguinity" (a), have a narrower meaning ',|^''"'J°'l 
 than " kin, " or " kindred," which terms include all rela- kin." 
 tives of affinity (&), and in common parlance also, those 
 of consanguinity. 
 
 Such being the case, the question arises — whom does Whom the 
 the law deem nearest of consanguinity to an intestate? if^eatTn"^ 
 Now, a man can have but three kinds of blood relations, blood. 
 namely, lineal ancestors, lineal descendants, and collateral 
 kinsmen ; and the relative importance of these, regarded 
 generally, the law of England estimates, as a rule, accord- 
 ing to the order in which we have ranged them here. 
 
 The children of an intestate, therefore, are on this Why children 
 ground preferred to their grandparents, and a fortiori to thei^^grand" 
 their uncles, the rule being that lineal descendants in parents. 
 infinitv/m are preferred to all ascendants and col- 
 laterals (g). " And the right of representation amongst 
 the descendants of an intestate is not confined within any 
 degree, since any descendant, however remote, excludes 
 
 (ic) Miller v. Eaton, G. Cooper, (J) See note (v), previous page. 
 
 272. fe) 22 & 23 Car. II. c. 10, ss. 3, 
 
 (y) Long Y. BlacJchall, ZYss.Z86; 5. It must, however, he remem- 
 
 but see Bullock v. Dovmes, 9 H. L. bered that since the Statute of Dis- 
 
 Cas. 1 ; a very important case on tributions the next of kin, though 
 
 this subject. collateral, is preferred before a re- 
 
 {z) Urquhartv. UrgyMrt, IZ^iro.. lation, though lineal, if he be of 
 
 613. the ascending line, and more re- 
 
 [a) MmsUy v. Young, 2 My. & mote. Blackborough v. Davis, 1 P. 
 
 K. 780 ; Smithy. Campbell, 19 Ves. Wms. 51. 
 404. Judgt. 
 
700 
 
 WfLLS OF PERSONAL PROPERTY. 
 
 Common law 
 rule. 
 
 Civil law 
 rules used in 
 England. 
 
 Canon law 
 rule used in 
 descent of 
 real estates. 
 
 all ascendants and collaterals." But if an intestate should 
 leave a brother or sister and a grandfather, the former 
 would be preferred to the latter Qi) as a grantee of 
 Letters of Administration, for although each stands to 
 the deceased in an equal degree of consanguinitj', yet the 
 words of the Statute of Distributions {i), being pro suo 
 cuique jure, that is, according to his own right, as dis- 
 tinguished from a right by representation, they will let in 
 any advantage of equality or preference which a person 
 was entitled to before the statute. At Common Law, 
 the rule of which on this subject corresponded to that 
 of the Canon Law, between brother and brother, there 
 was only one degree (J), but between grandfather and 
 gi-andson, two degrees. Now, however, we follow the rules 
 of the Civil Law in computing the degrees of collateral 
 consanguinity ; and by that system, there are two degrees 
 between brother and brother, the intestate himself being 
 the terwArtius a quo from which the several degrees are 
 numbered. The common ancestor, according to the com- 
 putation of the canonists, would be the starting point, but 
 their system the law of England adopts only in its rules 
 for the descent of real estate {k). The civilians reckon the 
 step upwards from the intestate to his father as one 
 degree, and then from the father downward to the intes- 
 tate's brother as another degree, making between brother 
 and brother two degrees, while by the Canon and Common 
 Law there is only one. The latter systems begin at a 
 common ancestor reckoning downwards, and hold that, in 
 whatsoever degree two persons, or the most remote of 
 them, is distant from the common ancestor, in precisely 
 the same degree are they related to each other, which 
 being so, two brothers would be one degree from each 
 other, from which it follows that there are more degrees 
 
 (7i) Evelyn v. Evelyn, Amlj. 191, 
 decided this point, 
 (i) N. (?) supra. 
 
 (j) Blachlorough v. Davis, 1 P. 
 Wms. 51. 
 (k) 2 Black. Comm. 504. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 701 
 
 between collaterals by the Civil, tban by the Canon Law 
 system of reckoning. 
 
 With the Canon Law, however, we have nothing to do Statute of 
 here, for it was long ago, decided that the proximity of founded'orthe 
 kindred is with us to be determined by the Civil Law rules Chil law. 
 of computation (I), and the Statute of Distributions (m) 
 was drawn by a civilian, Sir Walter Walker, with a view 
 to supersede by the rules of the Eoman those of the 
 Canon and Common Law in the division of an intestate's 
 effects (n). 
 
 Consanguinity or kindred has been defined as vin- Definition of 
 culum persoTiarum ab eodevn stipite descevdentium : ^a^affinHy.^ 
 the connection or relation of persons descended from the 
 same stock or common ancestor. It is opposed to affinity, 
 which signifies relationship, or rather connexion, contracted 
 merely by marriage. This consanguinity is either lineal Consanguinity 
 or collateral; lineal when it subsists between persons of or ooUaterair 
 whom one is descended in a direct line from the other, as 
 between A. and his father, grandfather, &c., or between A. 
 and his son, grandson, &c. Collateral consanguinity exists 
 between persons who, although each is lineally descended 
 from the same common ancestor — the stirps or root, 
 stipes — the trunk or common stock, yet ai-e not so related 
 that any one is a descendant of the other. Thus A. and Examples, 
 his brother or his first cousin are both descended from the 
 same grandfather, but not being descended one from the 
 other, are only collaterally related ; and it is to be borne What consti- 
 in mind that this descent of kinsmen from some common *on^an°idnTt™^ 
 ancestor is what constitutes the collateral consanguinity 
 between them. 
 
 According to the number of lineal ancestors which a Number of 
 man has, so many different bloods is he accounted to f°!!!*f! 
 have in his veins. And it is computed by Blackstone lineally in i- 
 
 (I) Mentriayv. Petty, Tiec.Cha.uc. c. 30, and made perpetual by 1 
 
 593. Jac. II., c. 17. 
 
 (m) 22 & 23 Car. II. c. 10. This (n) 1 Ld. Raymond, 574 ; M. v. 
 
 statute is explained by 29 Gar. II. Baines, or Pett v. Pett. 
 
702 
 
 WILLS OF PERSONAL PROPEETY. 
 
 geometrical 
 progression. 
 
 Collateral 
 kinsmen in 
 quadruple 
 ratio. 
 
 One generation 
 makes one 
 degree of 
 lineal consan- 
 guinity. 
 
 Eule of the 
 Civil Law 
 explained. 
 
 Illustration. 
 
 Reasons wMcli 
 guide the 
 Court in 
 selecting 
 administrator 
 from next of 
 kin. 
 
 Objection to 
 joint adminis- 
 trations. 
 
 that a man at the twenty-eighth lineal degree of descent 
 from two persons must have at least over a million of 
 ancestors, and that at the twentieth collateral degree, he 
 must have nearly two hundred. and seventy-five thousand 
 millions of kinsmen (o). 
 
 Every generation in lineal consanguinity constitutes a 
 different degree, whether considered by the Common, 
 Canon, or Civil Law ; but the computation of the collateral 
 degrees is differently effected, and is, as before stated, that 
 used in the Civil Law. By the rule of this system, to know 
 in what degree of consanguinity two persons stand to each 
 other, we count upwards from one of them to the common 
 ancestor, and downward from him to the other, and the 
 sum of all the steps taken will give the answer required. 
 Thus A. and B., two first cousins, are related to each other 
 in the fourth degree, because from A. to his father is one 
 degree, from his father to his grandfather two degrees, 
 from the grandfather to A.'s uncle three degrees, and from 
 the uncle to his son B. four degrees. (See ante, p. 700.) 
 
 In determining as to who, among the next-of-kin of an 
 intestate, shall administer his effects, preference should be 
 given to the nearest; and where persons of equal degree 
 apply, the judge has power to make the grant to the 
 person whom he deems most fit and proper, rejecting when 
 necessary, the individual cceteris paribus entitled ; and 
 one principle for his guidance is, that — if a man cannot 
 manage his own affairs, he should not be entrusted with 
 those of other persons (p). 
 
 If there are several persons entitled to a joint adminis- 
 tration, the Court will endeavour to avoid making a grant 
 to all, under any circumstances (q), but especially if there 
 
 (o) 2 Black. Comm. 204. At the 
 first degree of lineal descent a man 
 has two ancestors, at the second four, 
 at the third eight, and so on, so that 
 the progression is a + ar + ar' + 
 ar^, &o., where a and r each =2. 
 
 {p) Bell V. Timiswood, 2 Phillim. 
 
 22. 
 
 (?) In the goods of T. Richards, 
 L. R. 2 P. & D. 216 ; 40 L. J. 
 P. & M. 29 ; see the judgt. of Sir 
 J. NichoU in Warwick v. OreviUe, 
 1 Phill. p. 126, and post, pp. 705, 
 706. 
 
PRACTICE OF THE HIGH COURT IK PROBATE MATTERS. 703 
 
 be reason to apprehend such a contrariety of action 
 among the proposed persons as will tend to defeat the 
 whole administration (r) ; in short it is this possibility of 
 disagreement arising which inclines the Court against joint 
 administrations. 
 
 Cceteris paribus, the Court in making a grant prefers Male person 
 a male to a female person, on the supposition that the prXn-ed to 
 former is more likely to possess a better capacity for a female, but 
 transacting business, a reason also for selecting one par- 
 ticular man from among other men (s) ; but the Court 
 will depart from this rule where the grant is opposed 
 on sufficient grounds. Thus, where a man and his 
 three sisters applied in opposition to each other, and it 
 appeared that the brother had been bankrupt twice, and 
 had paid no dividend on the, second occasion, the Court 
 gave the administration to the sisters (t). It may, how- 
 ever, be observed, with respect to this case, that where 
 several years having elapsed since a bankruptcy, and the 
 bankrupt is shown to have paid a dividend and lived 
 respectably since, it can hardly be supposed that the Court 
 would alter its rule on the sole ground of the previous 
 bankruptcy merely. 
 
 Although, as a rule, a man is preferred to a woman as the First appli- 
 grantee of Letters of Administration, yet if a woman duly preferred ^ 
 entitled should be the first applicant, and no other just whether male 
 reasons existed for passing her over, the Court would give 
 her the grant on the ground of her being prior petens (u), 
 observing the spirit of the maxim qui prior est tempore 
 potior est jure. 
 
 We have now seen, up to a certain point, the rules by 
 which the Court is guided in its appointment of persons 
 
 (r) Bell V. Timiswood ; but see (s) Williams t. WUUtis, 2 Phill. 
 
 In the goods of Newbold, L. R. 100; In the goods of Browning, 
 
 1 P. & D. 285 ; 36 L. J. P. & M. 2 Sw. & Tr. 634 ; 31 L. J. P. & M. 
 
 14 ; also In the goods of Qrundy, 161. 
 
 L. R. 1 P. & D. 459 ; .37 L. J. (t) Indole v. Ford, 1 Sw. & Tr. 
 
 P. & M. 21, where special circum- 305. 
 
 stances existed making a joint grant (tj) Cordeux v. Trailer, 34 L. J. 
 
 convenient. P. & M. 127. 
 
704 WILLS OF PERSONAL PKOPEETY. 
 
 Summary. to administer aa intestate's effects (iv)., and these rules 
 may here be recapitulated : — 
 
 1. A HusBiND, by virtue of the Common Law, and 
 
 the Statute of Frauds {x), is entitled to administer 
 and exclusively enjoy his deceased wife's personal 
 estate. But such right may be controlled by cir- 
 cumstances, as where the wife has made a Will by 
 his consent, and in other ways already alluded to. 
 
 2. A Wife administers to her deceased husband, by 
 
 virtue of the Statute of Henry VIII. (y) ; by the 
 Statute of Distributions (z), and by the usual 
 practice of the Division (a.), which is not, however, 
 invariable (h). 
 
 3. Children of an intestate administer under the 29 
 
 Car. II. c. 10, and by reason of their nearness of 
 blood to the deceased, and they are preferred to 
 the intestate's parents (c), though both they and 
 the children are related to the deceased in the 
 first degree. 
 
 4. After the children rank the intestate's (1) grand- 
 
 children, and (2) GREAT GRANDCHILDREN, on 
 the ground that the lineal descendants in infini- 
 tum are preferred to all ascendants and col- 
 laterals (d) ; although a near collateral would be 
 preferred to a more remote ascendant. 
 
 (to) How the division of an intes- Collier, 3 Atk. 526. 
 tale's estate is effected after the (y) 21 Hen. VIII. c. S. 
 right to administer it is determined, (a) 22 & 23 Car. II. c. 10 ; Atkin- 
 forms the subject of the next and son y. Barnard, 2 Phillim. 317 ; God- 
 last chapter of this work. We may, dard v. Ooddard, 3 Phillim. 638. 
 however, state that the order of (ra) Stretch v. Pynn, Lee, 30 ; In 
 precedence indicated in the text as the goods of Oorser, 31 L. J.,' P. & 
 to the grant of administration, will M. 170. 
 
 serve to show the order in which (b) In the goods of Anderson, 3 
 
 those entitled in distribution have Sw. fcTr. 489; 33 L. J. P. & M. 149. 
 
 the right to receive their respective (c) 2 Vern. 125. 
 
 shares of the intestate's property. (d) 22 & 23 Car. II. o. 10, ss. 3, 
 
 See post, p. 708, and next Chapter. 5 ; Pett's case, 1 P. Wms. 27 ; 
 
 (a;) 29 Car. II. c. 3, s. 24 ; 2 judgt. ; Stanley v. Stanley, 1 Atk. 
 
 Black. Comm. 2, 615 ; Squib v. 467, 458 ; affirming Keylway v. 
 
 Wywn, 1 P. Wms. 379 ; Elliott v. Keylway, 2 P. Wms. 343. 
 
PRACTICE OF THE HIGH COUET IN PROBATE MATTERS. 705 
 
 5. (1) The father and (2) mother of the intestate 
 
 come next, because, supposing it to be necessary 
 at this stage to have recourse to ascendants and 
 collaterals — all claimants with better right being 
 extinct — the ascendants would have a right to 
 administer in preference to the collaterals. 
 
 6. Brothers and sisters will come before grand- 
 
 fathers and grandmothers ; because the nearest 
 of blood, though collateral, is preferred before a 
 relation, though lineal, if he be of the ascending 
 line (e). To these classes we may add : — 
 
 7. Grandfathers or grandmothers of the intestate 
 
 take before his 
 
 8. Nephews, nieces, uncles and aunts (/), and who 
 
 being in the third degree are among themselves 
 equally entitled ; while great grandfathers or 
 great grandmothers, being lineals, come before 
 
 9. Great nephews, &c., &c., who are collaterals, and 
 
 not of the same degree. 
 
 " With respect to the other next-of-kin they take in The other 
 their order, and it is the rule of the Court, where there "r^i'n their 
 are several equally entitled, to make the grant to the first order, 
 applicant, without requiring the consent or renunciation ^^^f applicant 
 of those who are entitled in the same degree. The grant 
 is made of the whole administration, and no power is 
 reserved for other administrators to come in and join as in 
 the case of executors. Another rule is that when several No more than 
 apply, the Court will not grant Letters to more than three administrators 
 persons, unless indeed, some special cii'cunistances induce aUo'^^ed by the 
 it to forego the general rule. Indeed, it prefers a sole g^j^ , . . 
 administration wherever possible." (g) tration always 
 
 It is also a rule of the Probate Division of the ^''J*^""'^- 
 High Court of Justice in these matters to grant ad- majority of 
 ministration to that one of several next-of-kin of the ™*^™^*^- 
 
 («) Blackhorough v. Davis, 1 P. (/) This was the exact point de- 
 
 Wms. 61 ; Evelyn v. Evelyn, Amb. eided by Blachborough v. Davw. 
 191, judgt. ; 3 Atk. 762. Win- ' {g) G. Browne's Prob. Prac. 174. 
 
 Chelsea v. Norcliff, 2 Freem. 95. See ante, p. 702. 
 
706 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Application of 
 the rule. 
 
 The grant 
 should follow 
 the Interest. 
 
 Illustrative 
 
 Interest of 
 the estate 
 paxamonnt to 
 all rules. 
 
 Contest 
 
 between appli- 
 cant of whole 
 and half blood. 
 
 Half-blood 
 is admitted 
 to the admin- 
 istration. 
 
 whole blood (h) in equal degree who unites in himself, or 
 represents, the majority of interests in the property to be 
 administered (i), unless there exists some valid reason for 
 passing him over. 
 
 The mode of applying this rule, which may be more 
 shortly stated by saying that the grant follows the interest, 
 may be seen by perusing the judgment in Budd v. 
 Silver (J). In that case there were nine cousins of equal 
 degree, of whom two, Budd and Silver, contested the ad- 
 ministration. Four joined with Budd, and three with 
 Silver, and accordingly the Court gave Budd the grant, 
 there being no objection to his character or capacity. 
 This rule, however, although more stringent than that 
 concerning the preference of males to females {Iredale 
 V. Ford (i), is only observed ccgteris paribus, being like 
 the majority of the other regulations as to grants of ad- 
 ministration, that is, it must give way when the safety and 
 interests of the estate require it to do so. Moreover, the 
 rule applies only to a contest between persons of the whole 
 blood in equal degrees of relationship ; for if the con- 
 test were between one of the whole blood and one of the 
 half blood, the former would be preferred to the latter (k). 
 
 It must not be inferred from the foregoing case that in 
 the grant of administration the Court excludes the half- 
 blood ; on the contrary, " the half-blood is admitted to the 
 administration as well as the whole ; for they are the kin- 
 dred of the intestate, and are excluded from inheritances 
 of law only upon feudal reasons. And, being nearest of 
 
 {h) Kinship of tbe wJiole blood 
 exists between persons who spring, 
 not merely from a common ancestor, 
 but from the same pair of ancestors. 
 Thus, if A. and B. intermarry and 
 have two or more children, these are 
 related to each other in whole blood. 
 If either A. or B. dies, and the sur- 
 vivor marries C, and has issue, the 
 children by the two marriages are 
 related to each other in half blood. 
 
 (i) AtJcinsony. Bernard, iFhiOira. 
 316 ; Tucker v. Westgarth, 2 Add. 
 Ecc. Eep. 352 ; Sutckinsony. Lam- 
 bert, S Add. 27 ; Iredale v. Ford, 
 1 Sw. & Tr. 305 ; In the goods of 
 Stainton, L. E. P. & D.; 40 L. J. 
 P. & M. 25. 
 
 0') 2 Phillim. 115. 
 
 (k) Mercer v. Morland, 2 Lee, 
 499; see also Warwick v. Greville, 
 1 PhiUim. 123, judgt. 
 
PEACTICE OF THE HIGH COURT IN PEOBATE MATTERS. 707 
 
 blood, the brother of the half shall exclude the uncle of 
 
 the whole blood (I) ; and the Ordinary [i.e., the President 
 
 of the Probate, &c., Division of the High Court of Justice] 
 
 may grant administration to the sister of the half or the 
 
 brother of the whole blood, at his discretion, for they are No preference 
 
 equal in degree [of kindred to the intestate] (m), and iJ'^f^*^™^ ""^ 
 
 there is no preference to the relations ex parte paternd side before 
 
 over those ex parte maternd " (n). motL™. * 
 
 The cases just alluded to are easily distinguishable from 
 those of the class to which Mercer v. Morland belongs ; 
 for the lattter had reference to a contest between a person 
 of the whole blood, and two persons of the half, related in 
 equal degrees of consanguinity ; whereas, the Cases cited 
 merely indicate the relative rights of persons of the whole 
 and half blood to be admitted to administration (o). 
 
 Before the statute 3 & 4 William IV. c. 106, a person Half-blood 
 of the half-blood was not capable of succeeding as heir to thT^soent of 
 his ancestor ; but for such a rule as this no solid reason was real estate. 
 ever adduced, and accordingly, the legislature abolished 
 it by sect. 9 of the enactment just referred to. A kins- 
 man of the half-blood can now succeed as heir next after 
 a kinsman of the same degree of the whole blood. 
 
 The Civil Law governing with us the degrees of kindred ." Tbe person 
 in matters appertaining to personal property, it has been tiood meets." 
 said that, in computing the degrees of kindred by that 
 system " you must have resort to the person in whom the 
 blood meets " (p). This expression is best explained by an 
 illustration : — Suppose D. and E. to be first cousins : they 
 are, therefore, collaterally related ; but to compute in 
 what degree of consanguinity they are connected, we must 
 
 (Z) Smith V. Tracy, Vent. 425. those wlio are descended from the 
 
 (m) Brown y. Wood, Aleyn, 36 ; same father, but a different mother, 
 
 but see Hill and Bride's case. Style, or vice versd. They are called in the 
 
 74 ; Brovm v. Farndell, Garth. 51. civil law unilaterales, that is, ex 
 
 (») 2 Black. Com. 605 ; Black- wno latere juncii ; non ex utrisque 
 
 borough v. Dames, 1 P. Wms. 53. parentibus conjuncti. 
 
 (o) The reader will remember (p) Evelyny. Evelyn, Arab. 192; 
 
 that kinsmen of the half blood are Argument of the Sol. -Gen. 
 
 z 2 2 
 
708 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Primogenittrre 
 not regarded 
 by the Pro- 
 bate Division 
 of the High 
 Court of 
 Justice. 
 
 But the eldest 
 son is pre- 
 ferred omnibus 
 cceteris 
 
 paribus. 
 
 All relations 
 are not neces- 
 sarily next 
 of kin. 
 
 Persons 
 entitled in 
 distribution. 
 
 first take each one up to a pair of common ancestors from 
 whom they both spring, and in whom they, as it were, 
 merge. In the present instance, the grandfather of D. 
 and E. is their common ancestor ; and he is said to be 
 the person in whom the blood of D. and E. meets. 
 
 In determining to whom preference shall be given in 
 its grants of administration, the Court is not influenced 
 in any way by the custom of primogeniture {q), that being 
 a feudal observance, and therefore unconnected with the 
 law concerning personal property. At the same time, 
 although primogeniture confers no legal right to be pre- 
 ferred as a grantee of administration ; yet, as Sir J. 
 NichoU observed in his judgment on the same case, 
 "if the scale is exactly poised, the fact of being the 
 elder brother would incline the balance." But no con- 
 sideration of this kind will weigh against the wish of 
 the majority of interests, for this would give a decided 
 preference to a younger brother even if nothing else 
 did (r). 
 
 It is possible for a person to leave relations who are not 
 necessarily his next-of-kin in the eye of the law ; for 
 although in the common acceptation of the term, " rela- 
 tion " means a connection by consanguinity or affinity (s), 
 yet in the Statutes of Distribution (f) its only signification 
 is kindred by blood, and therefore persons connected merely 
 by marriage — except a widow — are excluded from sharing 
 under these enactments, and, also, we may add, from taking 
 under a bequest to " relations " (it). Those who possess 
 the right to share in an intestate's effects by virtue of the 
 above statutes are said to be "entitled in distribution," 
 and the order of precedence among them is the same 
 as among those who are entitled to Letters of Adminis- 
 
 (q) Warwick v. Oreville, 1 Phil- 
 lim. 123, which decided this pre- 
 cise point. 
 
 (r) Ibid. ; also see Dampier v. 
 Colson, 2 Phillim. 56. See also 
 
 IredaU v. Ford, 1 Sw. & Tr. 305, as 761. 
 
 to " majority of interests." 
 
 (s) "Webster's Diet. 
 
 «) 22 & 23 Car. IL c. 10, and 
 1 Jao. II. c. 17. 
 
 (m) Worsley t. Johnson, 3 Atk. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 709 
 
 tration (v). The Court, however, does not give them 
 the grant, until the widow and nearest of blood under 
 the Statute of Henry VIII. renounce or waive their 
 rights, or become incapable of exercising them ; in which 
 case the other persons entitled in distribution come in, 
 and will then be entitled to the grant. 
 
 It may here be remarked that a wife is no relation to Wife no 
 her husband either by blood or by affinity (w), for, as husband." ^ 
 Calvin in his Lexicon Jueidicum says, under the title 
 Affinatis: Uxor non affinis est, sed causa ajfflnitatis, 
 The wife is not related by marriage, but is the cause of 
 such relationship. 
 
 Calvin also defines affinitas to be necessitudo ex Definition of 
 nuptiis contrctcta — the relationship contracted by mar- "**^°i*y-' 
 riage ; and Modestinus gives a list of the names borne 
 by the ajfflnes or connections by marriage. He says : 
 " Affi,niu7n nomina sunt socer, socrus ; gener, nurus ; 
 vitricus, noverca ; privignus, privigna ; gradus auterii 
 affinitatis nulli sunt : " — The names of those related 
 by affinity are father-in-law, mother-in-law ; son-in-law, 
 daughter-in-law, step-father, step-mother, step-son, step- 
 daughter ; but there are no degrees in mere relationship 
 by marriage. 
 
 The view of the connection between husband and wife Why a wife 
 and the meaning of the term affinity given above, is that of°^toher* 
 adopted in our law ; for if the wife were of kin to her husband, 
 husband at all, she would necessarily be nearest of kin, 
 and so exclude all the other persons from the grant 
 and also the estate ; but she is not, as shown by the 
 21 Hen. VIII. c. 5, which clearly distinguishes the wife 
 from the next of kin. 
 
 After what has been stated, it seems almost superfluous Husband and 
 to say again that neither husband nor wife is entitled to ^'^^ cannot 
 take anything under a bequest merely to " the next-of- under a gift by 
 
 (v) 2 Black. Com. 515 ; 1 "Wms. and see next Chapter. 
 Exors. Pt. 1, bk 5, oh. 2, § 1, 419 ; (to) Per Lord Hardwicke in Wars- 
 
 2 Id. Pt. 3, bk, 4, oh. 1, § 4, 1505 ; Uy v. Johnson, supra. 
 
710 
 
 WILLS OF PERSONAL PROPERTY. 
 
 deed or Will 
 to " next 
 of kin," 
 "family," or 
 "relations " 
 of either of 
 them. 
 
 Creditors may 
 administer if 
 no one else 
 can or will do 
 so. 
 
 Enabling a 
 creditor to. 
 pay a debt due 
 to him is the 
 ground for 
 granting ad- 
 ministration to 
 him. 
 
 All persons 
 ■with a better 
 title to admin- 
 istration must 
 renounce be- 
 fore it is 
 granted to 
 a creditor. 
 
 Person uniting 
 in himself the 
 characters of 
 next of kin 
 and creditor 
 
 kin," " family," or " relations " {y) of either of them {z) ; 
 and that, unless the intention be manifestly to the con- 
 trary, neither husband nor wife nor relations by affinity, 
 that is by marriage, can take under a gift to " next-of- 
 kin," whether the gift be by Will or deed (a). 
 
 It has been shown who the persons are of an intestate's 
 kindred, to whom the Court grants administration, and 
 the order in which those persons are preferred. But it 
 sometimes happens that an intestate's kindred decline to 
 take out Letters of Administration, and when such is the 
 case, one of his creditors may by custom do so instead. 
 Administration, however, is granted to a creditor, only 
 failing any other representative ; in which case there 
 being nobody to sue, the creditor not. being himself 
 administrator, and so able to pay himself, must also of 
 necessity lay out of his debt. But where a person whose 
 duty and interest it is to contest claims on the deceased 
 person's estate is before the Probate Division of the 
 Court, willing to undertake the administration, he or she it 
 is that is entitled to the grant, both in law and reason (a). 
 Nor can a creditor obtain Letters of Administration until 
 the widow, next of kin, and the persons entitled in distri- 
 butions have been cited (&), or have renounced or waived 
 their rights. And it was decided by Sir J. NichoU, in the 
 case (a) whence some of the foregoing remarks are ex- 
 tracted, that if an applicant for Letters of Administration 
 should unite in himself the characters of creditor and also 
 one of the next-of-kin, that this circumstance, so far from 
 assisting his claim, would operate against him in a contest 
 with a widow, or probably with any other of the next-of- 
 kin (c). By a comparatively recent case, the same principle 
 
 (y) The word "family,'' when 
 applied to personal property, is 
 synonymous with "kindred" or 
 "relations." Eop. Leg. 122. 
 
 (s) NichoUs V. Savage, cited in 
 BaUey v. Wright, 18 Ves. 52. See 
 ante, pp. 697, 698. 
 
 (a) Bailey v. Wright, supra. 
 
 n. (z). 
 
 {b) Brown v. Wildman, 28 L. J. 
 P. & M. 54. It will be remembered 
 that citations are now only used by 
 way of interlocutory process. 
 
 (c) Webb V. Needham, 1 Add. Ecc. 
 Eep. 494. 
 
PRACTICE OF THE HIGH COUET IN PROBATE MATTERS. 711 
 
 was upheld ; the Court deciding that a person entitled to Cannot take 
 administration as next-of-kin cannot take as a creditor {d) ; wkere tkere 
 in short, it is the practice of the Probate Division of the ^^ another 
 Court not to grant administration to a creditor while there better title. 
 is a party ready to administer who has a prior title (e). 
 The Court will not regard either the nature of the debt Nature aid 
 nor its amount when granting to a creditor. At the same debTnot''re- 
 time, if the creditors dispute among themselves, the Court garded by the 
 will then prefer a judgment creditor, or a creditor pre- „ , 
 senting the largest debt, and if an ordinary creditor with be a contest 
 a large debt should contend with a judgment creditor of creditors 
 smaller amount, in all probability the former would pre- 
 vail (/). The statute 32 & 33 Vict. c. 46, having No priority o£ 
 abolished the priority of specialty debts of a testator or ^^^^5^'*^' 
 intestate over those by simple contract, creditors under a 
 deed will not, merely on this account, be preferred to those 
 whose debts are otherwise secured. 
 
 It has been noticed before that, when an executor When executor 
 refuses to act, or dies intestate, the Court will gi'ant ad- r^fi^e^ "r lies 
 
 _ _ . ' _ ° intestate the 
 
 ministration cutn testwmento annexo to a residuary legatee residuary 
 in exclusion of the next-of-kin (g). And in the event of the enlitfed'to ad- 
 persons enumerated declining to act, the Court may ap- ministration, 
 point a person under the general terms of the Probate loiMdefm^i. 
 Act, 1857, s. 73, to administer the deceased person's 
 estate Qi), or may grant him administration ad colligenda 
 bona defumcti. A grantee in this case is, really, neither 
 an administrator nor an executor, except as regards the 
 mere collecting the goods, his business being simply to 
 collect all the personal property of the deceased, safely 
 keep the same, and abide the directions of the Court 
 concerning their ultimate disposition (i). If such a 
 
 [d) In the goods of Corser, 31 [g) See, also, 1 Wms. Exors, Pt. 1, 
 L. J. P. &M. 170. bk. 6, ch. 3, § 1, 462, 463. 
 
 (e) Graham v. Madecm, 2 Curt. (A.) In the goods of Batemcm, L. E. 
 Eoc. Eep. 663 ; Judgt. of Sir H. 2 P. & D. 242 ; 40 L. J. P. & M. 
 Jenner. 24. 
 
 (/) Ernest v. Eustace, 1 Deane, (i) Inthe goodsofliadnan,^ AM. 
 
 273. Ecc. Rep. 233. 
 
712 
 
 WILLS OF PERSONAL PEOPEETY. 
 
 The person 
 appointed to 
 collect must 
 not sell the 
 goods of the 
 deceased. 
 
 The grantee 
 need have no 
 interest in the 
 estate. 
 
 Ad eoUigen- 
 d/wm where 
 delay of 
 general ad- 
 ministration 
 might preju- 
 dice estate. 
 
 Creditor may 
 tie appointed 
 to collect. 
 
 Bastard. 
 
 grantee sells the goods, he, however, becomes an executor 
 de son tort (k), for the Court having no power itself to 
 sell, cannot confer such authority upon any special 
 administrator (l). 
 
 A gi-antee of Letters ad bona coUigenda, need not 
 possess any right or interest in the estate ; necessity is 
 the foundation of his appointment, and the object is to 
 prevent damage to the estate or effects of the deceased. 
 Thus, where a foreigner on his way to England died intes- 
 tate on board ship, and having in his possession bills of 
 exchange drawn upon merchants in England, the Court 
 granted administration limited ad colligendum to a part 
 owner of the ship on board which the deceased died (m). 
 
 The Court will, in cases where the estate might be in- 
 jured if the parties entitled waited for the general grant of 
 administration, grant Letters ad colligendum, as where it 
 was beneficial to renew the lease of business premises held 
 by a deceased person, and which lease would have expired 
 before a general grant could have been made {n). The 
 delay, of course, might be considerable, for the reason that 
 limited administrations are not, as a rule, to be granted, 
 unless every person entitled to the general grant has con- 
 sented or renounced, or has been cited and failed to appear, 
 except under the direction of the judge (o). 
 
 A creditor may take the grant ad colligendum, (p). 
 
 In all cases where application is made for Letters of Ad- 
 ministration, either with or without a Will annexed, of the 
 goods of a bastard dying a bachelor or spinster, or a widow 
 or widower .... notice of such application is to be given 
 to Her Majesty's Procurator General {q) .... in order 
 
 (k) "Went. Off. Ex. 321, n., and 
 see as to an executor de son tort, 
 ante, p. 570, et seq. 
 
 (I) Toller on Exors. 107. 
 
 (m) In the goods of Wyckoff, 3 Sw. 
 & Tr. 20 ; 32 L. J. P. & M. 214 ; 
 See also 7» the goods of Stewart, L. R. 
 1 P. & D. 727 ; 38 L. J. P. & M. 
 39. 
 
 («) In the goods of ClarMngton, 
 2 Sw. & Tr. 380 ; 10 "W. R. 124. 
 
 (o) Rule 29 for N. C. business in 
 the Principal Registry. 
 
 (p) See note («) ; and In the goods 
 ofG. Stewart, L. R. 1 P. & D. 727 ; 
 38 L. J. P. & M. 39. 
 
 (q) More, usually styled the 
 Queen's Proctor. 
 
PRACTICE OF THE HIGH COURT IN PEOBATE MATTERS. 713 
 
 that he may determine whether he will interfere on the 
 part of the Crown ; and no grant is to be issued until the 
 officer of the Crown has signified the course which he thinks 
 proper to take (r). 
 
 In all cases of persons dying intestate without known persons dying 
 relations, the same course is to be adopted (r), and a cita- ■^i*^ no known 
 
 ' _ . . relations. 
 
 tion must also be issued against the next-of-kin, if any, 
 and all persons having or pretending to have any interest 
 in the personal estate of the deceased (s) ; and the service 
 of the citation upon them shall be personal where possible 
 or practicable (f), or if not, then by advertising the citation 
 in such London and local newspapers, and at such intervals 
 as the judge or a registrar may direct («). 
 
 Where an intestate, whether legitimate or a bastard, Solicitor to the 
 dies without relations, or husband or wife, the Solicitor to Treasury 
 
 usually ad- 
 
 the Treasury is generally nominated by the Crown to ad- ministers 
 minister his effects. In this case, the office of adminis- tSt^^^^o/ 
 trator will descend, for successors of the Solicitor to the person dying 
 
 ™ 1 1 ■ ii , intestate with- 
 
 ireasury are always named in the grant. out known 
 
 Although it is usual to appoint the Solicitor to the relations. 
 
 Treasury to take administration, yet the Crown may ap- i^ay*uom*inatr 
 
 point a relation of the intestate or other person (v), and any other 
 
 .,, j.1. ■ i- • T. J. person to ad- 
 
 in either case the nomination is by warrant. minister. 
 
 If a bastard, dying intestate, having natural relatives. Bastard's pro- 
 his property is divided between them, the Crown claiming perty usually 
 
 . ,1 , divided be- 
 
 a percentage on the amount. tween his 
 
 We have seen that the main object which the Court relations, 
 
 ... . , . . . . with per- 
 
 has in view when granting administration under any cir- centagetothe 
 cum stances, is the protection and benefit of the estate to *^™^''- 
 be administered, and those interested therein. Accord- the estate the 
 ingly, where a person entitled to administration, either '"^''^ "''J^'^' ™ 
 with or without a Will annexed, is residing out of England, administra- 
 the grant may be given to his attorney, acting under a *'™' 
 
 Grant of ad- 
 
 (r) Rule 75— N. C. Bus. Princ. {u) Rule 70. 
 
 Reg. (v) See Jones y. GoodchiU, 3 P. 
 
 (s) Rule 76. "Wms. 32. 
 
 (t) Rule 69. 
 
714 
 
 WILLS OF PEESONAL PROPERTY. 
 
 ministration to 
 attorney of 
 absentee. 
 Power of 
 attorney in 
 these cases 
 should 
 
 specially pro- 
 vide for the 
 particular 
 duty. 
 
 Solicitor need 
 not reside in 
 England ; but 
 his sureties 
 must. 
 
 A person 
 residing in 
 England can- 
 not depute 
 another to 
 administer for 
 him. 
 
 Secus, where 
 the property is 
 held in trust. 
 
 Applications 
 for probate and 
 administration 
 may be made by 
 attorney, &o. 
 
 power of attorney (x), whicli instrument, to avoid delay 
 and expense, should specify clearly on its face the appoint- 
 ment of the attorney to act in the particular business in 
 question. Where, however, a Letter of attorney was exe- 
 cuted by a person abroad delegating to her solicitor 
 extensive powers, but which did not include the one of 
 taking out Letters of Administration, the Court considered 
 this to be one of the " special circumstances " intended to 
 be provided for in the Court of Probate Act, 1857 {y), and 
 granted administration to the solicitor (z). 
 
 The solicitor so appointed, need not himself reside 
 within the jurisdiction of the Court ; but the sureties to 
 his administration bond must do so {a). 
 
 A person residing in England cannot depute a solicitor 
 or other nominee, to take out probate or Letters of Admin- 
 istration for him with a view to having the estate ad- 
 ministered by such nominee (6) ; but of course an executor, 
 or any person entitled to administration, may employ a 
 solicitor, simply qua solicitor, to take probate or Letters 
 of Administration for him (c). 
 
 Should, however, the deceased person's estate consist 
 solely of trust property, it is competent in such a case for 
 an administrator to appoint a solicitor to act for him, 
 whether he be in England or abroad {d). 
 
 Although applications for probate or Letters of Adminis- 
 tration may be made either through a [proctor,] solicitor, 
 [or attorney], or in person, by executors and parties 
 
 (*) Rule 32 K C. Princ. Eeg. 
 A power or letter of attorney is a 
 deed poll, wherehy the party exe- 
 cuting it gives another the power 
 to act for him either generally or 
 in certain specified matters. It 
 need not he under seal when it is 
 employed to authorise a person to 
 take out Letters of Administration ; 
 In the goods of Morley, 3 Sw. & Tr. 
 425 ; 33 L. J. P. & M. 108. 
 
 {y) 20 & 21 Vict. c. 77, s. 73 : 
 See in the goods of Morley, supra. 
 
 (z) In the goods of Escot, 28 L. J. 
 P. & M. 17. 
 
 (a) In the goods of Leeson, 1 Sw. 
 &Tr. 463; 29 L. J. P. &M. 19. 
 
 (i) In the goods of Burch, 2 Sw. 
 & Tr. 139 ; 30 L. J. P. & M. 171. 
 
 (c) Rule 2-N. C. Bus. P. E. 
 1862. By sect. 87 of the Jud. Act, 
 1873, all legal practitioners, except 
 banisters, are to be called "Soli- 
 citors of the Supreme Court." 
 
 (d) In the goods of Bullar, 39 L. J. 
 P. & M. 26. 
 
PRACTICE OFTHE HIGH COURT IK PROBATE MATTERS. 715 
 
 entitled to administration, yet they cannot be made by 
 
 letter or by an ordinary agent (d). 
 
 No person is entitled to probate of a Will unless he has Executor is the 
 
 been appointed the executor thereof: but in the event of only pepon 
 . 1 ■ r 1 ■ entitled to 
 
 an executor being abroad at the time of his testator's probate. 
 
 death, he may employ a solicitor to prove the Will for Solicitor of 
 him. The solicitor, in an affidavit, states the death of 
 testator, the appointment of an executor, his own ap- 
 pointment by that executor under a power of attorney, 
 and finally promises to administer the personal estate of 
 the deceased for the use and benefit of the executor until ■• 
 the latter obtains probate. So that, as a matter of fact, 
 the above proceeding is not proving the Will, but simply 
 taking a grant of administration (limited as regards 
 time), with the Will annexed (e), and which expires when 
 the executor comes within the jurisdiction and obtains 
 probate (/). 
 
 The section of the Court of Probate Act, 1857, just An executor 
 
 1 1 ' . ■* „ out of the 
 
 referred to, also enacts that where an executor is out of jurisdiction 
 the United Kingdom at the time of his testator's decease, ™*y ^^ v^^^^ 
 
 o ' over. 
 
 the Court may, when it is necessary and convenient to do 
 so, grant administration with the Will annexed to some 
 other person, from whom, in its discretion, it may demand 
 security for a due performance of his duty. 
 
 The provisions of the Statute 38 Geo. III. c. 87, which 38 Geo. III. 
 had reference to executors only (g), and 20 & 21 Vict, poratedrwlth 
 c. 77 (h), are extended by the Court of Probate Act, 1858, Probate Act, 
 to all executors and administrators residing out of the 
 
 (d) See note (c), ante, p. 714. only on his applying for and obtain- 
 
 (e) See 20 & 21 Viot. c. 77, s. 73. ing probate, or by the death of the 
 (/) Pipon V. Wallis, 1 Lee, 402. attorney. This grant made to the 
 
 In the goods of Cassidy, 4 Hagg. executor on his return would be 
 
 Eco. Rep. 361. Formerly the mere designated a second, supplemental, 
 
 fact of the executor's return deter- or cessate grant. See post, pp. 717, 
 
 mined the grant to the attorney ; 736. 
 
 but in the latter of the two cases (g) Ray v. WillougKby, 2 Rob. 
 
 here cited, the Court decided that Ecc. Kep. 184. 
 
 the grant should not expire by the (h) Sect. 74. 
 simple return of the executor, but 
 
716 
 
 WILLS OF PERSONAL PKOPEETY. 
 
 Executor 
 absent after 
 takingprobate. 
 
 Power of the 
 Court. 
 
 Kemarks. 
 
 Variety of 
 cases in which 
 probate, &c., 
 may be 
 limited. 
 
 Any number 
 of executors 
 may be ap- 
 pointed by a 
 testator. 
 
 Dividedly. 
 Beally. 
 
 jurisdiction of Her Majesty's Courts of Law and Equity {%), 
 or, as we say now, the High Court of Justice. 
 
 The first of these Statutes has reference to executors to 
 whom probate has been granted, and who continue to 
 remain out of the jurisdiction of the Courts after a period 
 of twelve months from the death of their testator. 
 
 In such cases the Court may appoint a special adminis- 
 trator, with powers defined by the Act, and after any grant 
 of administration no person shall have power to act as 
 executor of the estate comprised in such administration 
 until it has been recalled or revoked (jz). We shall refer 
 to this subject again presently when we come to deal with 
 grants durante absentid. 
 
 In commenting on the various kinds of grants of pro- 
 bate and administration, we proposed to deal with them 
 in a certain order, but, as we proceeded, found a strict 
 adherence to this plan impracticable. We have, however, 
 been able to consider sequentially general probate and 
 administration, and several of the various limited or 
 special kinds of probate and administration. The nature 
 of gi-ants limited as to estate, has been noticed, also 
 many of those limited to A particular object, as the 
 grants cceterorum, those called save and except, and ad 
 coUigenda bona. We have now to consider the remain- 
 ing grants LIMITED TO A PARTicuLAE OBJECT, then those 
 LIMITED AS TO TIME, the supplemental or cessate gi-ant 
 {post, p. 736), and, lastly, double peobate {post, p. 739). 
 It is obvious that the cases in which probate or ad- 
 ministration with a Will annexed may be limited to a 
 particular object, are very numerous, for we must re- 
 member that a person may, at his pleasure, appoint any 
 number of executors for any number of different acts, or, 
 as it is said, he may appoint them dividedly, really, 
 locally, and temporally. Thus, if he make A. his executor 
 for his household goods, and B. executor for his leases, he 
 is said to divide their power really ; if he appoint C. to 
 
 (i) 21 & 22 Vict. 0. 95, s. 18. 
 
 (h) 20 & 21 Vict. c. 77, s. 75. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 717 
 
 administer his goods iu one county, and D. to do so in 
 
 another, he divides their power locally ; if he makes E. Locally. 
 
 executor for his lifetime, and F. during the minority of his 
 
 son, this would be dividing their power t&m'porally. " So Temporally. 
 
 of like limitations or divisions, either for time, place, or 
 
 things, wherewith they shall intermeddle '' {I), and as 
 
 executors or administrators (m) represent their testator or 
 
 intestate, any number are considered in law but one Any number of 
 
 in ; . . . . 1,1 ,1 1 executors one 
 
 person, and all must jom m sumg, whether they have person in law. 
 administered or not, and whether or not they have proved 
 their testator's Will. When, however, they are sued, only 
 as many as have administered need be joined (m). 
 
 Accordingly, we find testators limiting their executors Limited 
 
 in various ways (o), and in such cases the Court grants f^iied pro^^^ 
 
 limited probate. But if a person is entitled to a general bate. 
 
 grant, the Court will not give him a limited one, except Cleneral grant 
 
 where strong reasons exist for doing so {p), and if his interest, as a 
 
 interest be partial, his grant will be limited to that ^iaf^ant 
 
 interest {<}). follows partial 
 
 Of the grants of probate or administration limited to a ™ ^"^ ' 
 particular object, there is but one more which can be 
 specially noticed — the grant ad litem, that is, for prose- Ad litem. 
 outing or defending proceedings begun, or to be begun, 
 in the Chancery Division of the High Court of Justice. Difference 
 This grant must not be confounded with that pendente ut^^^i 
 lite ; for the grantee in the former case is appointed to y*™^™** ^»*«- 
 represent the deceased person in litigation, and he is a 
 party to the suit [action now] ; whereas in the latter, he 
 is appointed simply to administer during litigation. 
 
 (I) Went. Off. Exors. 29 ; Toller, parties, cmte, p. 464. 
 Exors.36 ; OarUv. Cari!e,3 Atk.180. (o) "Went. Off. Exors. pp. 22-31 ; 
 
 (m) Toller, Exors. 242. and see ante, p. 561. 
 
 (») As to co-administrators, see ( p) Patterson v. Hvmter, 30 L. J. 
 
 Jaxomh v. Earwood, 2 Ves. 267 ; P. & M. 272. In the goods of 
 
 Warwick v. GrevUle, 1 PWllim. 126, Lady C. Somerset, L. R. 1 P. & D. 
 
 judgt. See also 1 Wms. Exors. Pt. 1, 350. 
 
 bk. 3, oh. 2, 245 ; 2 Id. Pt. 5, bk 1, (q) In the goods of Dodgson, 1 Sw. 
 
 oh. 1, 1867 ; Pt. 5, bk. 2, ch. 1, & Tr. 259 ; 28 L. J. P. & M. 116 ; 
 
 1935 ; and as to the provisions and see In the goods of Hampson, 
 
 under the Jud. Acts as to joinder of L.R.1P.&D.; 35 L. J. P. & M.l. 
 
718 
 
 WILLS OF PERSONAL PROPERTY. 
 
 When the 
 
 grant ad litem 
 is made. 
 
 The grant ad 
 litem cannot 
 be general. 
 
 Effect of 
 
 15 & 16 Yiot. 
 
 u. 86, B. 44. 
 
 The grant ad litem issues when in any administration 
 or other action it is necessary to make a deceased person a 
 party, and those who should represent him, as his executor 
 or next-of-kin, fail to do so. In such a case a grant of 
 administration limited ad litem, will constitute the grantee 
 a sufiBcient representative for the purposes of a suit in 
 equity [now called an action in the Chancery Division of 
 the High Court of Justice'] ; and although the grant ad 
 litem cannot be general, yet, for the purposes of an action, 
 the limited grant will be as effective as a general adminis- 
 tration would have been (r). 
 
 By the 15 & 16 Vict. c. 86, s. 44 (s), the Court of Chan- 
 cery was, and the Chancery Division of the High Court of 
 Justice is, able to appoint or not appoint, according to 
 its discretion, some person to act on behalf of an estate 
 before the Court, where it appears that a deceased person 
 — who, had he been living, would have been interested as a 
 party in the matter before it — has no person to represent 
 him in the litigation — as, e.g., for all the purposes of the 
 pending action, or any other proceedings. It has, however, 
 been held that the above section does not apply to the 
 case where the estate, to which it is desired to appoint the 
 representative, is the same as that which is being admin- 
 istered by the Court {t) ; but it is obvious that, in the 
 absence of a personal representative of the deceased 
 party to the action, the interests of persons entitled to 
 his estate might, in such a case, be seriously affected. 
 And where, from circumstances, a person is compelled to 
 administer under the direction of the Chancery Division 
 of the High Court, and he is appointed a personal 
 representative of the deceased person in the litigation, 
 and authorised to apply to the Probate Division for 
 
 (r) Per Lord Cottenham, C, in 
 Davis V. Chanter, 17 L. J. Chano. 
 297 ; 2 Phillips, Chanc. Eep. 545. 
 
 («) Intituled "An Act to amend 
 the practice and course of proceed- 
 
 ing in the High Court of Chan- 
 cery. " 
 
 (t) Silver r. Stein, 1 Drewry, 
 295. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 719 
 
 administration, the latter tribunal will, it appears, order 
 the grant to issue to such person (u). 
 
 We now come to the consideration of grants of probate Grants limited 
 or administration LIMITED AS TO TIME. These are called ^ ° ™^' 
 according to circumstances : 
 
 (a.) Durante absentid executoris, or during the absence 
 
 of the executor (ly). 
 (b.) Durante minoritate estate executoris, or during his 
 
 minority, 
 (c.) Durante dementid, or during his lunacy, 
 (d.) Pendente lite, or during litigation, 
 (e.) Until a lost Will be found, 
 (f ) During any other period. 
 
 When a testator dies, his executor is either within or 
 without the jurisdiction of the High Court of Justice; 
 if he be in England at the time he is, of course, within the 
 jurisdiction. 
 
 Assuming the executor to be sole, willing to act, but out Executor out 
 of the jurisdiction at the time of his testator's death, the Jurisdiction, 
 question is — What steps should be taken under such cir- 
 cumstances ? To this question the Probate Act, 1857 (x), 
 will afford a portion of the necessary answer : — ..." When Statute. 
 the executor 'shall at the time of the death of such person 
 [i.e. the testator] be resident out of the United Kingdom 
 of Great Britain and Ireland, and it shall appear to the 
 Court to be necessary or convenient in any such case, by 
 reason of the insolvency of the estate of the deceased, or 
 other special circum.stances, to appoint some person to be 
 the administrator of the personal estate of the deceased, 
 or of any part of such personal estate, it shall be 
 lawful for the Court, in its discretion, to appoint such 
 person as the Court shall think fit to be such adminis- 
 trator upon his giving such security (if any) as the Court 
 
 (u.) See In the goods of Mayer, effect of such, a grant, see Weii v. 
 
 L. R. P. & D. 39 ; 42 L. J. P. & M. Kiriy, 7 De G. M. & G. 876 ; 26 
 
 57. L. J. Ch. 145. 
 
 (w) As to the legal and equitable (x) Sect. 73. 
 
720 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Court may 
 refuse to 
 exercise its 
 statutory 
 power. 
 
 Court has full 
 discretion as to 
 whom it will 
 appoint. 
 
 Grants (ittranie 
 absentid very 
 old. 
 
 Keiurn of the 
 executor. 
 
 Case. 
 
 Present prac- 
 tice in grants 
 durante ab- 
 sentid. 
 
 Stat. 38 
 
 Geo. III. c. 87. 
 
 shall direct, and every such administration may be limited 
 as the Court shall think fit." , 
 
 In the absence of any of the special circumstances here 
 referred to, and if the estate is safe, and is not of a perish- 
 able nature, the Court may refuse to exercise the powers 
 conferred upon it by the Statute (y). 
 
 If, however, tho.se powers are exercised, the Court has 
 the fullest discretion as to whom it will appoint (z) ; and 
 as the safety of the estate and the interests of those en- 
 titled thereto are the chief objects of the Court's con- 
 sideration iu all grants of administration, such discretion 
 is properly vested. 
 
 This practice of making grants of administration, 
 limited to the time of an executor's absence, is one 
 of very long standing, and obtained at the common 
 law (a). Fonnerly, on the appearance of the executor, 
 the other grant ceased, a practice from which very incon- 
 venient results often accrued, the chief being the abate- 
 ment of suits commenced by (6) the administrator, in the 
 absence of the executor. This latter practice, however, 
 has long ceased to exist, and in a case where administration 
 with a Will annexed was granted to the attorney of an 
 absent executor, and the latter on returning to England 
 applied for probate, making an affidavit that there were 
 no suits pending, the Court determined " that, in future, 
 grants durante absentid to attornies should be limited 
 ' for the use and benefit of A., resident at M.,' and until 
 the executor or party entitled to the administration 
 should apply for and obtain, probate or Letters of Ad- 
 ministration (c)." 
 
 The Statute 38 Geo. III. c. 87, has already been men- 
 
 (y) See In fhe goods of White, 2 
 Sw. & Tr. 457 ; 31 L. J. P. & M. 
 161. 
 
 (g) See In the goods of Collier, 
 2 Sw. & Tr. 444 ; 31 L. J. P. & M. 
 130. 
 
 (a) Slaughter v. May, Salk. 42 ; 
 2 Ld. Eaymond, 1071 ; Major v. 
 
 Peck, Lutw. 342 ; Clare v. Badges, 
 6 Mod. 304 ; Wallcer v. Woollaston, 
 2 P. "Wms. 579. 
 
 (J) This was not so as to suits 
 against him. Major v. Peck, Lutw. 
 443. 
 
 (c) In the goods of Cassidy, 4 
 Hagg. Ecc. Eep. 360. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 721 
 
 tioned as providing for the due administration of a deceased 
 person's estate when his executor has been residing twelve 
 months out of the jurisdiction after taking probate of the 
 Will. The first section of the above Act is as follows : — 
 
 " At the expiration of twelve calendar months from the Section I. 
 death of any testator, if the executors or executor to whom 
 probate of the Will has been granted, are, or is, then re- 
 siding out of the jurisdiction of His Majesty's Courts of 
 Common Law or Equity, it shall be lawful for the 
 Ecclesiastical Court which granted probate of such Will, 
 upon the application of any creditor, next-of-kin, or 
 legatee, grounded on affidavit hereafter mentioned, to 
 grant such special administration as is hereafter also 
 mentioned. ..." 
 
 Before this Statute, the Ecclesiastical Courts, although Practice before 
 
 ,1 ,■ ,j "ii'^ji' n ttis Statute. 
 
 they sometimes granted a special administration of a 
 
 deceased person's goods after probate had been taken of 
 
 his Will, yet they were not certain as to the strict legality of 
 
 taking such a course, merely because the executor was out 
 
 of the jurisdiction. To set these doubts at rest (d), the 
 
 legislature passed the Act in question, the provisions of 
 
 which are extended by the 21 & 22 Vict. c. 95, s. 18 (e), 21 & 22 Vict. 
 
 which enacts that : — "' ' 
 
 " The provisions of 38 Geo. III. c. 87, and of the Court of Section I. 
 Probate Act, 1857, shall be extended to all executors and 
 administrators residing out of the jurisdiction of Her 
 Majesty's Courts of Common Law and Equity, whether it 
 be or be not intended to institute proceedings in the Court 
 of Chancery." 
 
 The ordinary jurisdiction of these Courts extended. Territorial 
 and that of the present Supreme Court of Judicature i^^j."* *'''®„ 
 
 ■^ '■ junsdietion of 
 
 extends, over persons and property within the limits of Chancery and 
 England, Wales, and Berwick-upon-Tweed, but not to 
 Scotland or Ireland, nor to the Channel Islands (/). 
 
 {d) Taynton v. Eawmy, 3 B. (/) Roberts on Equity, 15 ; 1 
 
 & P. 26. Ohitty's Archhold, by Prentice, 1. 
 
 (e) "Court of Probate Act, 1858." 
 
 3 A 
 
722 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Object of 
 38 Geo. III. 
 c. 87. 
 
 What is 
 required to 
 enable the 
 Court to grant 
 administration 
 under it. 
 
 Chancery suit 
 should exist — 
 
 Unless there 
 is a specific 
 sum to be 
 claimed by 
 applicant. 
 
 Accordingly, if an executor be absent in Scotland, he will 
 be ■within the meaning of the Statute ; an executor out of 
 the jurisdiction being, for the purposes of the Act, the 
 same as one out of the realm {g). 
 
 The object of the Act now under notice was to enable 
 a creditor or legatee to obtain what was due to him " to 
 prevent the grand inconvenience that would ensue, if the 
 debts of the deceased could not be recovered during the 
 absence of the executor beyond sea." 
 
 All that is necessary to enable the Probate Division of 
 the High Court to grant administration under the Act 
 is the fact of the executor's absence for twelve months 
 from the date of testator's death, and his absence from 
 the jurisdiction at the time of making the application (A), 
 and the existence or pending of proceedings in the 
 Chancery Division. 
 
 In the course of his judgment in the case cited below. 
 Lord Penzance, then J. O., said: — 
 
 " The Statute 21 & 22 Vict. c. 95, which enlarges the 
 powers given by the Statute of Geo. III., provides that the 
 powers shall apply to all executors and administrators 
 residing out of the jurisdiction, ' whether it be or be not 
 intended to institute proceedings in the Court of Chan- 
 cery ; ' but, as at present advised, I think the Court ought 
 not to exercise the power where there has been no Chancery 
 suit (i) [action now], or no means of ascertaining how far 
 there are funds applicable to the claims advanced. Where 
 there is a specific sum set aside to be paid to the applicant, 
 the Court will make a gi-ant without proceedings being 
 taken in Chancery ; but where there is not such a specific 
 sum, the only grant the Court can make is a grant limited 
 to enabling the applicant to become a party to an ad- 
 ministration suit, and to obtain whatever the Court of 
 Chancery may decide is due to him." 
 
 {g) Ewnmay v. Taynton, 2 Add. M. 63. 
 Eco. Eep. 505. (i) This was so decided in Thomas 
 
 (h) In the goods of Ruddy, L. Davies' case, 2 Hagg. Eco. Eep. 79. 
 E. 2 P. & D, 330 ; 41 L. J. P. & 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 723 
 
 If, therefore, such a grant he made to a residuary legatee, Residuary 
 whose interest in the estate is unascertained, it will be only receive a 
 limited to enable him to sue in the Chancery Division of f™'^* J™''?'^ 
 
 ''to enable him 
 
 the High Court of Justice. to sue in 
 
 As to the duration of these grants durante ahsentid ex- J^^^"^'^^- 
 
 , (xrants under 
 
 tra regnutn under 38 Geo. III. c. 87, it has been held that 38 Geo. iii. 
 the authority of the special administrator does not neces- \^^^^j^^°^^ 
 sarily terminate by the return or death of the executor Qc), the death or 
 although as to ordinary grants, durante ahsentid, i.e., those exemtor : 
 not made under the Statute, it is otherwise. «««™ "f "tiier 
 
 We have now to consider the grant DURANTE MINORI- ahsentid. 
 
 TATE JETATE EXECUTORIS. Dm-anie 
 
 -r, ,1 /-v T 1 . I minoritate. 
 
 x5y the Common Law, a person under twenty-one years pg. 
 of age is called an infant or minor ; but in the Civil Law between 
 
 ., . . . ,. . T 1 . 1 infants and 
 
 the former designation is applied to a person under seven minors in the 
 years of age, and the latter to a person over seven but *^'^' •^*^- 
 under twenty-one. The Ecclesiastical Law adopted this 
 rule of the Civil Law, and the Probate Division of the 
 Supreme Court observes the distinction made thereby 
 between infants and minors in this respect, namely, that a 
 minor may select his own guardian in litigation, whereas 
 an infant has not this power, but the President appoints 
 one for him. 
 
 The practice of granting administration durante QranU durante 
 minoritate is a very old one, as may be seen by perusing ™rToi*d *^ 
 the case cited below {I), but the law therein laid down, as 
 to age, has been altered by statute, as we shall presently 
 see. A child, even though unborn, may be appointed an Meaning of the 
 executor, and by a grant durante minoritate is meant one *®™'" 
 limited to the time of a sole executor's legal minority, 
 that is, until he arrives at the age of twenty -one. At one 
 time this grant determined on his reaching the age of 
 seventeen (^n) ; but now, where an infant is sole executor, Statute. 
 administration with the Will annexed shall be granted to 
 
 {Tc) Ta/ynton v. Hannm/, 3 B. & 29. 
 P. 26. (m) Frehe v. Thomas, 1 Ld. Eay- 
 
 {l) Piggot's case, Co. Rep. Part 5, mond, 667. 
 
 3 A 2 
 
724 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Judge may ap- 
 point guardian 
 to an infant : 
 
 But a minor 
 may elect one 
 himself. 
 
 Testamentary 
 guardian. 
 
 Testator may 
 authorise 
 guardian to 
 appoint a co- 
 guardian for a 
 successor. 
 
 Next of kin's 
 right to 
 guardianship, 
 and to re- 
 nounce it. 
 
 Three guar- 
 dians only 
 allowed. 
 
 Majority of 
 
 the guardian of such infant, or to such person as the High 
 Court of Justice shall think fit, until such infant shall have 
 attained the age of twenty-one years, at which period, and 
 not before, probate of the Will shall be granted to 
 him {n). 
 
 The President of the Probate Division of the High 
 Court, ex officio, assigns a guardian to an infant, or one of 
 the Eegistrars can do the same, but a minor may nominate 
 his own guardian, who — if a frojper 'person for the office 
 — is then admitted in that character by the judge. If, 
 however, the deceased person has appointed a guardian 
 by deed or Will, under 12 Ch. 2, c. 24, ss. 8, 9, or one has 
 already been appointed by a judge of the Chancery Divi- 
 sion, he is preferred to all other persons (o), and such 
 guardian may, if authorised to do so by the testator, 
 appoint a co-guardian, or a successor to himself in the 
 office (o). 
 
 An executor or a person entitled to administration 
 who is a minor, although he has the power to nominate 
 his guardian, yet he must, as a rule, select some member 
 of his next-of-kin to act in that capacity, imless he 
 can show some good reason for a different choice, for 
 the next-of-kin have the right to fill the office either to 
 a minor or an infant, before persons who are strangers 
 to them in blood. But the next-of-kin may, of course, 
 renounce their right to the guardianship of either an 
 infant or a minor, in which case it may be transferred to 
 some other of his kin, or a stranger, and if the infant or 
 minor had no known relatives a stranger would neces- 
 sarily be appointed. 
 
 The Court never appoints, or allows the election of, 
 more than three guardians to or by an infant, or minor 
 executor or administrator. 
 
 If administration be granted to a guardian for the use 
 
 (») 38 Geo. IIL c. 87, s. 6. 
 
 (o) In the goods of Morris, 2 Sw. 
 & Tr. 360 ; 31 L. J. P. & M. 80. 
 Jn the goods of Pamell, L. E. 
 
 2 P. & D. 379 ; 41 L. J. P. & M. 
 35 ; also Rules P. R. in Non-C. 
 Bus. 33—36. As to Testamentary 
 Guardians, see ante, p. 304, et seq. 
 
PEAOTICE OP THE HIGH COUET IN PROBATE MATTERS. 725 
 
 and benefit of one or several infants, it ceases on that one o°e of several 
 
 or the eldest of the several attaining twenty-one (p). minates the 
 
 If there be several infant executors, he who first attains administra- 
 
 the age of twenty-one shall prove the Will, and the ad- tj^^ ^^^ ^^^ 
 
 ministration shall cease ; but administration granted during first attains 
 
 the minority of several children will not expire on the pToverthe^ 
 
 marriage of one of them to a husband of full age (25). ^^'^• 
 
 Nor if a minor be executrix, shall it be determined by her ™*rriage of 
 
 ' _ •' mtant exeou- 
 
 taking a husband who is of age, but she will elect her trix. 
 
 husband to be her guardian. Husband 
 
 . elected. 
 
 If there be two executors, one of whom has attained the q^ , 
 
 age of twenty-one years, and the other has not, adminis- a mihor or 
 
 tration shall not be granted during the minority of him ^jj^" ^f ^^ 
 
 that is under age, because the former may take probate of *ge. 
 
 the Will (p). 
 
 In addition to a guardian of the person of the infant Chancery 
 or minor, the Chancery Division of the High Court of ^^ZtT^ 
 Justice may, if there be reason to doubt the ability or guardian of 
 honesty of ' the former, appoint a guardian or receiver of 
 the personal estate ; but the present practice is to appoint 
 one person for both purposes (g). 
 
 A person may be either an executor or an administrator Difference 
 
 durante minoritate of the real and sole executor. Thus ^^t^^™ exe- 
 cutor and ad- 
 
 if A., a testator, nominate M., an infant, as his executor, ministr.itor 
 and appoint N. to act for him until he attains his majority, mimriau. 
 then N. would be an executor durante minoritate. The 
 difiference between the latter and an administrator is 
 obvious, for we have hitherto assumed nobody to have 
 been appointed, by the testator ; moreover, the appoint- 
 ment of an administrator durante mi/noritate, not being 
 within 21 Hen. VIII. c. 5 (r), or any other statute, is 
 entirely in the discretion of the Court itself, subject, 
 
 (p)Toller,Exors. 101; 38Geo. III., to on the ground of poverty, as a 
 
 0. 87, s. 6. grantee of administration durante 
 
 {q) 2 Daniel Cli. Pr. 1196, and minoritatB. 
 
 see Havers v. Havers, Barnardis- (r) Briers v. Qoddard, Hob. 250 ; 
 
 ton's C. C. femp. Hardwicke, 23, Smith's case, 2 Str. 892. 
 24, where the guardian was objected 
 
726 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Property in 
 the goods 
 during admin- 
 istration by 
 guardian. 
 
 Knies of tlie 
 Court con- 
 cerning grants 
 to guardian^ 
 
 Election of 
 guardian 
 generally by 
 writing under 
 
 Administra- 
 tion durante 
 
 Practice of the 
 High Court. 
 
 Committee of 
 lunatic en- 
 titled to grant, 
 
 however, — with regard to the duration of the appoint- 
 ment, — to the statute mentioned below (s). 
 
 When an administration durante minoritate of a sole 
 executor is granted, the property of the goods is in the 
 infant executor, and therefore the administrator during 
 minority cannot sell any of the testator's goods, although 
 he may sue for debts due to the deceased, and may also, it 
 is apprehended, sell any goods of a perishable nature (i). 
 
 The rules of the Probate Division concerning these 
 grants to guardians are 33, 34, 35, 36, of those made for 
 the Non-Contentious- business of the Principal Kegistry, 
 and 39, 40, 41, 42 for that of the District Eegistries. 
 
 The election of a guardian, or guardians, by minors is 
 generally by an instrument under their hand and seals ; 
 and should there be any infants in the family, they are 
 named in the document, but do not sign it, the minors 
 jointly appointing the guardian, or guardians, for the 
 . whole number. 
 
 With regard to administration durante demsntid, or 
 during the lunacy of an executor, it was long ago deter- 
 mined that, in the event of a sole executor becoming non 
 compos, the administration might be committed to some 
 other person (w). 
 
 Accordingly, it is the present practice of the Probate 
 Division to grant administration to a representative of a 
 lunatic (w) executor, for the lunatic's use and benefit until 
 his recovery. 
 
 If there be a committee in lunacy, who can be appointed 
 only by the Court of Chancery under a commission {x), the 
 grant will be made to him, both where a Will exists and 
 
 (s) 38 Geo. in. 0. 87, s. 6 ; 
 Lovell T. Cox, cited in West v. 
 Willby, 3 Phillim. 379, and in 
 1 Wms. Exors. pt. 1, bk. 5, ch. 3, 
 § 3, 482. 
 
 («) Walker v. Woollaston, 2 P. 
 "Wms. 587, 583. 
 
 {u) Bills V, Mills, 1 Salk, 35. 
 
 (io) The term "lunatic" includes 
 in its legal signifioation, idiots, 
 imbeciles, and maniacs ; in fact all 
 persons whose unsoundness of mind 
 incapacitates them from transact- 
 ing business. 
 
 (x) See 25 & 26 Vict. c. 86, ss. 
 12, 13. 
 
PRACTICE OF THE HIGH COUKT IN PROBATE MATTERS. 727 
 
 ill cases of intestacy ; but if there be no committee, then 
 to the residuarj' legatee, or to him with the committee's 
 given or implied consent ; and if there be no Will, then 
 to the next-of-kin. 
 
 The committee produces his appointment, and makes Affidavit. 
 an affidavit promising to administer the estate of the 
 deceased person properly during his ward's incapacity. 
 
 When the next-of-kin, or other persons, not committees, Persons who 
 apply for the gi-ant, the joint affidavit of a medical man go^^jj^tggg 
 and a nurse, stating the lunacy of the executor, is required : 
 in addition, a declaration of the personal estate and 
 effects of the deceased must be filed in the registry, and 
 the sureties to the administration bond must justify (2/). 
 
 The committee of a lunatic executor and residuary Committee of 
 legatee in trust, may waive his right to administration ^aiveh"*^ 
 in favour 0^ a residuary legatee for life : and this waiver right, 
 may be either expressed or implied, that is, if the com- 
 mittee do not object, he will be taken to have con- 
 sented {z). 
 
 If the sole administrator of an intestate becomes a Subsequent 
 lunatic after receiving the grant, the Court will not revoke i^estate's^" 
 it, but will grant administration to his committee, or if administrator 
 there is no committee, to some other person duly entitled, revoke grant. 
 during the lunacy of the first grantee. If the temporary 
 administration be not to a committee, the original letters. Letters 
 however, will be called in and impounded, in order to be ^P"™ ® 
 re-delivered out should the lunatic eventually recover (a). 
 
 " If a sole executor become a lunatic or of unsound Sole executor 
 mind, the Court will make a new grant to the committee lunatirffter 
 of his estate, if there be one .... So also, if a sole ad- probate. 
 ministrator become of unsound mind. But in both these 
 cases the old gi-ant remains at large and is not required to 
 be impounded " (6). 
 
 {y) Coote's Prob. Prao. 136, 7tli Curt. Ecc. Rep. 286, cited in Coote 
 
 ed. ; and see Rule 42 (1862) for the Prob. Prac. 193 ; 1 Wms. Exors. 
 
 P. R. in N. C. business. pt. 1, bk. 5, oh. 3, § 6, 518. 
 
 (s) In the goods of Milnes, 3 Add. (i) Coote and Tristram, 157; 
 
 Ecc. Rep. 55. Coote, 193. 
 
 {a) In the goods of ' Binclces, 1 
 
728 
 
 WILLS OF PEESONAL PEOPERTy. 
 
 Mental disease 
 mubt be such 
 as to disqualify 
 a person from 
 transacting 
 business. 
 
 Mere mental 
 weakness will 
 not disqualify. 
 
 Difference 
 between a 
 lunatic so 
 found by in- 
 quisition and 
 one not so 
 found. 
 
 Administra- 
 tion durante 
 corporis aut 
 animi vitio. 
 
 Recovery of 
 lunatic. 
 
 His death. 
 
 Death of 
 
 temporary 
 
 administrator. 
 
 Pendente lite. 
 
 The Common 
 Law Courts 
 formerly con- 
 sidered these 
 
 In order that the allegation of mental disease may 
 exclude an executor from performing the duties devolving 
 upon him, it must be shown that he is wholly incapaci- 
 tated by insanity. Where one of two executors objected 
 to his co-executor being joined with him in a grant of 
 probate on the ground of mental weakness, the Court held 
 that this fact did not establish such incapacity as to debar 
 the executor from acting (c). 
 
 If a person is a Chancery lunatic, that is found insane 
 on a commission de lunatico inquirendo, the Court, as 
 we have seen, takes judicial notice of that fact : if the 
 person has not been found a lunatic, the Court proceeds in 
 the manner already described. 
 
 Formerly there was an administration called durante 
 corporis aut animi vitio, that is, during the continuance 
 of any defect of mind or body, but it has long ceased to 
 exist, and the only persons at present really incapable, by 
 law, of acting as executors, are those whose inability arises 
 from mental disease {d). 
 
 If the lunatic executor or administrator recovers the 
 proper use of his mind, he has a right to act. If, during 
 his inability, he dies, the grant ceases, and must be given 
 to some person entitled by interest to receive it. When 
 the administrator durante dementid dies before the 
 lunatic, a new one is appointed with the same formalities 
 as the first one was. 
 
 Concerning the gra.nt pendente lite, or during litigation, 
 in cases of controverted Wills, we must first observe that 
 although the Spiritual Courts were in the habit of granting 
 administrations pendente lite in cases of intestacy, yet 
 the Courts of Common Law at one period always con- 
 sidered these grants, unless they were made merely con- 
 
 (c) Evans v. Tyler, 2 Eobert. Ecc. 
 Eep. 128. 
 
 {d) To such an extent has the 
 doctrine of non-interference with 
 this class of rights been carried, 
 that, as far back as 182i, Sir J. 
 
 NichoU doubted whether a man 
 who had been convicted of bigamy 
 might not administer to his so- 
 called second wife as her lawful 
 husband, Wilkinson formerly Lawes 
 V. Gordon, 2 Add. Ecc. Eep. 152. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 729 
 
 cerning a right of administration, " utterly void " (e) : e^^ants veid if 
 for if they were made concerning a Will they were held existed. 
 inoperative, the executor's power having been deemed 
 indefeasible. In the case cited below (e), and which was 
 decided in the year 1731, by the Court of King's Bench, Opinion 
 this opinion was altei'ed, and Lord Eaymond and the other ^^^f^^ '" 
 judges held that the Probate Court had the power to grant 
 administration pendente lite in either of the above cases. Reason for 
 the reason being that, if the power did not exist, there ^^"* Pendente 
 would be no person to sue for the debts of the deceased. 
 One of the judges, however, still doubted, but was brought 
 to reason, and eventually concurred in the opinion of 
 his brethren. The decisions preceding this case illus- 
 trate the tardiness which our Courts have often shown Tardiness of 
 with respcet to the introduction into the unwritten law 
 of some most clearly needed improvements. Moreover, 
 the reason for appointing an administrator pendente lite 
 in certain cases, even where an executor exists, is so 
 obvious, that one can but feel surprised that it was never 
 perceived or acknowledged until 1731. 
 
 Although the tribunal now represented by the Probate 
 Division of the High Court of Justice has long possessed 
 the undoubted right to appoint an administrator pendente 
 lite, yet where there is an executor willing to act, the 
 Court will always exercise that power very sparingly ; Court exercises 
 and will not do so except when the estate is in smdnljJ 
 jeopardy or on some other special and equally important 
 ground (/). But according to the present practice in this Ciiterion by 
 Division of the High Court, administration pendente lite t'^^"} 9^^ 
 
 .,, , 1 . 11 Court judges 
 
 Will be granted in all cases where the Chancery Division of the 
 vrould appoint a receiver (//), that is to say, not merely l^^^f^lJ^^ 
 
 ■ if) WooUaston v. WaZixr, 2 Str. § 5, 495. ' dente Hte!' 
 
 917, but see 2 P. Wms. 584. From (e) See last note, 
 
 the first cited report it would ap- (/) See Mortimer y. PauU, L. R. 
 
 pear that the reason of the decision 2 P. & D. 85 ; 39 L. J. P. & M. 47 ; 
 
 was because no Will had then ap- Rorrell r. Witts, L. R. 1 P. & D. 
 
 peared, but the reasons stated in 103 ; 35 L. J. P. & M. 55. 
 
 P. Wms. have since been followed ; (//) BelUw v. Bellew, 4 Sw. & 
 
 1 Wms. Exors. pt. 1, bk. 5, ch. 5, Tr. 68 ; 34 L. J. P. & M. 125. 
 
730 
 
 WILLS OF PERSONAL PROPERTY. 
 
 The grant is 
 given to some 
 person not 
 concerned in 
 the litigation. 
 
 His powers. 
 
 Hi3 position. 
 
 Liability. 
 Eeoeiver. 
 
 Eemuneration. 
 
 Inventory. 
 
 when there are good reasons for apprehending injury to 
 the estate, or for deeming that it might be benefited by 
 the appointment of a receiver {g). The rule is, that 
 wherever there is a hond fide suit pending, the Chancery 
 Division appoints a receiver simply because, while it is 
 pending, there is no person legally entitled to hold the 
 assets and give discharges. Upon similar grounds, then, 
 the Probate Division now grants administration pendente 
 lite. 
 
 It is the usual practice of the Probate Division to give this 
 grant to some person who is not concerned in the litiga- 
 tion (A.), although it may be given jointly to the nominees 
 of the parties litigant (i), and the person appointed has 
 all the powers of a general administrator other than 
 the right of distributing the residuary portion of the 
 estate (Jc). 
 
 Notwithstanding, however, that he has those powers, 
 yet he is under the immediate control of the Court {k), 
 and when the suit terminates, his authority then ceases, 
 and he must account to the person in whose favour the 
 Court has determined the suit. 
 
 If the suit before the High Court (Probate Division) 
 involve a dispute concerning real estate, the administrator 
 'pendente lite may be appointed a receiver of the rents and 
 profits, and shall have such powers of letting and manag- 
 ing such real estate as the Court may direct (I). 
 
 The Court may direct that administrators and receivers 
 pendente lite may receive remuneration out of the 
 personal and real estate in litigation (m). 
 
 Every administrator pendente lite and receiver of real 
 estate shall exhibit an inventory and render an account of 
 
 (g) See Mortimer v. Paull, L. R. 
 2 P. & D. ; 39 L. J. P. & M. 47. 
 
 {K} Strattm v. Ford, 2 Lee, 49. 
 Bnt see Wright v. Sogers, L. E. 
 2 P. & D. 179 ; 40 L. J. P. & M. 8, 
 where executors, under special cir- 
 cumstances, took the gi'ant. 
 
 (i) Sellier v. Hellier, 1 Lee, 
 281. 
 
 {k) 20 & 21 Vict. 0. 77, s. 70. 
 
 {!) 20 & 21 Vict. c. 77, s. 71 ; 
 21 & 22 Vict. 0. 96, ss. 21, 22. 
 
 (m) Ibid. s. 72. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 731 
 
 the property of the deceased which comes into his hands (n), 
 and a receiver of real estate pendente lite must give a bond Bond, 
 with two sureties and a penalty, the amount of which is 
 in the discretion of the Judge (o). 
 
 Where a person died intestate, and his widow, with- Receiver in 
 out taking out administration, possessed herself of a apply to the 
 portion of his estate, a bill in Chancery was filed against £""5* °* 
 her. That Court appointed a receiver with authority also ministration. 
 to apply to the Court of Probate for Letters of Adminis- 
 tration. The receiver cited the widow and all the next-of- 
 kin entitled in distribution, and, on their non-appearance, 
 the Judge Ordinary, Sir J. Hannen, although no pre- 
 cedent could be found for such a grant, made it to the 
 receiver (p). 
 
 Pkobate of Lost or Destroyed Will, and Adminis- 
 tration UNTIL A Lost Will is Found. 
 
 Although Chapter VIII. of this work has been devoted 
 to the consideration of the present subject, yet a few 
 supplementary observations concerning the practice of 
 the Probate Division of the High Court of Justice may 
 here be made. 
 
 With regard to lost Wills, it is obvious that a Will Until Will or 
 or codicil may be lost either in the lifetime of the testator 9*"^^°'^ ''® 
 
 •' found. 
 
 or after his decease, and between these two states of cir- 
 cumstances there is a noticeable difference. 
 
 If a Will be lost or mislaid by a testator during his Presumption 
 
 lifetime, and no other has been executed by him, in all ^^^ ^j'und" at 
 
 probability no paper will be forthcoming at his death, testator's 
 
 Now, if it can be shown that the Will had not left the re"o7u 
 
 custody of the deceased, a presumption of law at once rebuttable 
 
 arises that he destroyed the Will himself, anvmo revo- -whicii itself 
 
 candi. But this being merely prasumptio juris and ™ay.^« J""^* 
 
 not one juris et de jure, "may be repelled by evidence : evidence. 
 
 (») Rule 96 of p. R. in Cont. Bus. 
 Bus. (p). In the goods of Mayer, L. R. 
 
 (o) Rule 79 of P. R. in Cont. 3 P. & D. 39 ; ii L. J. P. & M. 67. 
 
733 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Conduct and 
 declarations of 
 the deceased. 
 
 To prove re- 
 Tocation, the 
 Win must be 
 shown to have 
 been in 
 testator's 
 custody. 
 
 Omis 
 probandi. 
 
 All the circnm- 
 stances of the 
 case to be 
 dealt with. 
 
 Court may 
 
 nor does it require evidence amounting to moral cer- 
 tainty, but only such as reasonably produces moral 
 conviction " (g). 
 
 The conduct of the deceased and his declarations may 
 be deposed to, with a view to rebut the legal presumption 
 of revocation, and evidence may, on the other hand, be 
 given of declarations calculated to uphold the presump- 
 tion (r). These latter, however, by no means establish 
 the destruction of the Will, but are admitted merely to 
 indicate an intention on the part of the testator not to 
 adhere to its terms (s). 
 
 In all cases where it is the object to prove revocation, it 
 must clearly appear that the Will was in the possession of 
 the testator when its alleged destruction took place ; and 
 as we have previously seen, the onus of proving the de- 
 struction is on the party alleging the revocation ; and this 
 is also the rule when a testator, who has become insane, 
 is stated to have revoked his Will before his insanity 
 commenced {f). 
 
 If a Will proved to have been executed by a testator 
 and in his possession a reasonable time before his death, 
 be not forthcoming after that event, the Court must judge 
 from the whole circumstances, whether it may draw the 
 inference that the testator destroyed his Will animo 
 revocandi. Should the effect of the evidence go to 
 establish the presumption of revocation, the Court declares 
 the deceased to have died intestate. 
 
 Concerning a Will destroyed by a testator, or another 
 
 (y) Sir Jolin NichoU in Davis v. 
 Davis, 2 Add. Ecc. Ecp. 224. 
 
 (r) Keen v. Keen, L. R. 3 P. & 
 D. 105 ; 42 L. J. P. & M. 61. 
 
 (s) "The term ' declaration of in- 
 tention' includes all statements 
 merely declaratory of the intention 
 of the party, such as oral declara- 
 tions, drafts of Wills, directions 
 for Wills, and other evidence of the 
 same kind." 2 Phillipps on Evi- 
 
 dence, 300, n., and see the judg- 
 ment of Cockburn, C. J., inSugden 
 V. Lord St. Leonards, L. R. 1 P. 
 & D. (N. S.) 206 ; 45 L. J. P. 4; M. 
 49. But a statement by a testator 
 that he had executed his Will can- 
 not be given in evidence : — In the 
 goods of Ripley, 1 Sw. & Tr. 68. 
 
 (t) Sprigge v. Sprigge, L. E. 1 
 P. & D. 608 ; 38 L. J. P. & M. 4. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 733 
 
 person, ia his lifetime, unintentionally, and his death grantprobate 
 
 r T,., ■, 1 1/-. .of a Will un- 
 
 Qappens before he can make another, the Uourt on receiv- intentionally 
 ing credible evidence of the fact, may grant probate of t^ftgj^tor^or 
 its substance and effects. any other 
 
 If a true copy or draft of the original and lost Will jHetime." 
 or codicil is in existence, the executor may, on making Copy or draft 
 affidavit of the due execution of the destroyed Will, take °a^°ft Jt^ 
 probate limited until the Will, or some other document probate. 
 better entitled to proof is produced. 
 
 The destruction of a Will by another person during the 
 testator's lifetime must of course be effected either with or 
 without the testator's authority. In the former case it is 
 the same as if the testator himself had done it ; but in 
 the latter, he might be amenable to the Statute cited 
 below (u), the terms of which on this point are stated 
 ante, p. 428. " I think we may reasonably assume that when fraudu- 
 if a person destroyed a Will either to gratify malice or '®''* ^°*®?* 
 
 r J o J presumed. 
 
 from mere wantonness, he would be amenable to the Act 
 of Parliament in question, although a question might 
 arise in such a case : still, the mere destruction or con- 
 cealment, unexplained by the defendant, is evidence from 
 which fraud may fairly be presumed " (x). In cases where 
 this Statute is violated, the Will destroyed may be estab- 
 lished by proper proof (y). 
 
 If a Will be known to have existed at the death of the Will lost after 
 testator, and afterwards be lost or stolen, or not forth- deS™ ^ 
 coming, the executor can obtain probate of either a draft, 
 a copy, or of the substance and contents of such Will (z), 
 when no draft or copy exists, and such contents may 
 be proved by a residuary legatee, or other person in- 
 terested (z). 
 
 In each of these cases the executor must prove by Executor's 
 
 duties . 
 
 (m) 24 & 25 Vict. c. 96, s. 29, Phillim. 153. 
 repealing 7 & 8 Geo. IV., c. 29, (z) Davis v. Davis, 2 Add. Eco. 
 
 s. 23. Rep. 224:— Judgt.ofSirJ.]Sricholl; 
 
 (x) Arohb. Cr. PI. 356. Sugden v. Lord St. Leonards, supra 
 
 {y} Trevelyan v. Trevelyan, 1 {s). 
 
734 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Will found 
 and Codicil 
 lost. 
 
 Will lost and 
 Codicil found. 
 
 Case. 
 
 Will destroyed 
 in lifetime of 
 testator -witli- 
 
 af3fidavit the execution of the Will alleged to be lost, that 
 it existed at testator's death whole and uncancelled, and in 
 the same state as when executed ; he must also promise to 
 exhibit a true inventory of the deceased person's effects, 
 and to administer them faithfully. 
 
 The word " Will," including a codicil, the above remarks 
 are equally applicable to codicils as to Wills {z). But if a 
 codicil, the contents of which are not known, be lost, and 
 the Will be found, the Court may grant probate of the Will 
 until the codicil can either be produced or its contents 
 authentically stated. Where a Will is lost and a codicil 
 is found, if the Court is satisfied by the dispositions of the 
 codicil that the testator intended that it should operate 
 independently of the Will, probate, or administration cum, 
 codicillo annexo, will be granted (a). 
 
 Aman made a Will and codicil thereto which he retained 
 in his own possession, and afterwards executed another 
 paper which he called a second codicil. This he gave to one 
 of the legatees named therein. On his death this was the 
 only paper forthcoming, and the Court admitted it to 
 proof (6). The ground of this decision was that the second 
 codicil had not been revoked by the Wills Act, 1837, 
 sect. 20, which enacts that revocation can only be effected 
 by another Will or codicil, or by any duly executed 
 writing, declaring an intention to revoke the same, or by 
 burning, tearing, or otherwise destroying the same by the 
 testator or by some person in his presence and by his 
 direction, with the intention of revoking the same. 
 
 From what has been said then, there can be no doubt 
 that in law if a Will duly executed is destroyed [or stolen. 
 
 (z) See note (a), previous page. 
 
 (as) In the goods of Greig, L. R. 
 1 P. & D. 72 ; 35 L. J. P. & M. 
 113, on the authority of Grimwood 
 V. Cozens, 2 Sw. & Tr. 368. If one 
 of several codicils be found missing 
 at testator's death, and he is shown 
 to have had the custody of his 
 papers, the presumption of revoca- 
 
 tion is strengthened rather than 
 rebutted in such a case ; In the 
 goods of Shaw, 1 Sw. & Tr. 62. 
 
 (6) Blach V. Johling, L. R. 1 P. & 
 D. 685 ; 38 L. J. P. & M. 74 ; 
 affirmed by In the goods of Savage, 
 L. R. 2 P. & D. 78 ; 39 L. J. P. & 
 M. 25. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 735 
 
 or hidden away] in the lifetime of the testator without out tis 
 his authority [or knowledge] it may be established upon ^ ' 
 
 satisfactory proof being given of its having been so de- 
 stroyed, &c., and also of its contents (c). 
 
 The substance of a Will destroyed, &c., after testator's Probate of a 
 death may be admitted to probate whether it be wholly ^rtiJi""'^^ °^ 
 or only partially destroyed. (See ante, p. 421.) destroyed. 
 
 The eldest son of a testator having been allowed to Tearing a 
 privately peruse his father's Will, together with the ^'^1^^'^°^^' 
 "instructions," tore up the papers, and scattered the frag- pasting them 
 ments about several fields. Many of the pieces were °^^ ^'^' 
 afterwards collected and pasted on two sheets of paper 
 which were placed before the Court. The drawer of the 
 Will, then copied as much as he could collect from the 
 fragments, supplying the deficiencies from memory, and 
 the Court decreed administration to testator's widow with 
 these papers annexed (d). 
 
 In a still older case, where a woman being angiy be- AnoUier case. 
 cause a deceased testator had not left her children 
 legacies, tore his Will in pieces, the Court directed the 
 fragments to be pasted together and probate to pass in 
 common form (e). 
 
 Where a Will had been mutilated by rats in testator's wiii eaten by 
 lifetime the Court, on being satisfied of the substance of ™*^' 
 the paper from the portions preserved, and also from the 
 statements of witnesses, granted probate of what appeared 
 the substance of the Will (/). 
 
 In cases where it is known that a duly executed Will wm mislaid 
 was in existence after a testator's death, but the contents ^**^^ testator's 
 
 7 ^ death. 
 
 of which are unknown, and such Will has been mislaid, 
 and there is no reason to believe that it has been wil- 
 fully suppressed, the Court may grant administration until 
 the document, or a copy, be found, and brought into 
 
 (c) Trevelyan v. Trevdycm, 1 Saynes v. Haynes, 2 Vera. 441. 
 Phillim. 153, judgt. (/) See 1 Vms. Exors. Pt. 1, 
 
 (d) Foster v. Foster, 1 Add. Eoo. bk. 4, o. 2, § 7, 379, citing Toller, 
 Rep. 462. 70. 
 
 (e) Knight v. CooTc, 1 Lee, 413 ; 
 
736 WILLS OF PERSONAL PROPERTt". 
 
 the Registry. The grant of administration under these 
 
 circumstances is, of course, in the discretion of the Court, 
 
 and it will require affidavits of the facts of the case, also 
 
 that all parties entitled in case of intestacy shall have 
 
 renounced or have been cited to see proceedings (jg), 
 
 Justification and that the securities to the administration bond shall, 
 
 of sureties. . .„ , . . . • ■ i j.i_ j. 
 
 justify, that is, when it is sworn by the principal that 
 
 they are worth the amount in which they are bound, after 
 
 payment of debts (Ti). 
 
 The only cases which the present writer has been able 
 
 to find in the reports on the above subject are those 
 
 cited below (i) ; but the power and practice of the Court 
 
 in such cases are nevertheless well established (J). 
 
 General powers The Probate Division of the High Court of Justice may, 
 under the powers conferred upon the Court of Probate 
 by the Act of 1857 Qi), grant administration to some 
 proper person until those entitled to the grant may 
 apply for it (I) ; and the Court may make a grant limited 
 to any other period when the circumstances of the case, 
 the safety of the property and the interests of the parties 
 interested require such a grant to be made. 
 
 Cessate grants. When the Court has made a grant limited to or for 
 some specified time or object, and such time has expired, 
 or the purpose of such grant is accomplished, or the 
 grantee dies, the force of the probate or administration 
 ceases, and a new grant, unlimited in all respects, must 
 be made to the person entitled (m). 
 
 Grants of probate or administration made under these 
 
 {g) Rule 29 IS. C. Bus. Princ. executor's — and the contents can be 
 
 Beg. ascertained, see Burls v. Burls, 
 
 (h) As to the justification of L. B. 1 P. & D. 472 ; 36 L. J. 
 
 sureties to Admn. Bonds, see Rule P. & M. 125. 
 42, N. C. business (1862). (j) Coote Proh. Prac. 126. 
 
 (i) Lloyd V. Lloyd, 2 Lee, 321 ; (k) 20 & 21 Tict. c. 77, s. 73. 
 
 Vallance y. Vallomce, 1 Hagg. Ecc. (Q In the goods of Cholmll, L. R. 
 
 Rep. 693 ; Me Campbell, 2 id. 555. 1 P. & D. 192 ; 35 L. J. P. & M. 
 
 As to the principles which guide 75, a case on the above section, 
 the Court where a Will is lost by (m) Per Sir J. MchoU in Abbott 
 
 negligence — in this case by the v. Abbott, 2 Phillim. 579. 
 
PEACTICE OF THE HIGH COURT IN PKOBATE MATTERS. 737 
 
 circumstances are called second, suppleTnental, or cessate 
 grants, the last designation being the most common, though 
 perhaps not the most accurate. 
 
 It is almost superfluous to observe that, if the deceased Distinction 
 person's estate has been wholly administered, no cessate cessate grant 
 grant will be necessary. The reader may, however, be and grant 
 
 . 1 . 1 . . 1.^1 • ' 1 • • 1 "^ boms non. 
 
 mchned to inquire why, if the estate is UTiadministered 
 at the expiration of the limited grant, a grant de bonis 
 non should not issue ? The answer is this : — It may be 
 true that the estate is unadministered ; but the teniporary 
 administrator here — as in all cases of temporary adminis- 
 tration — though merely the representative or agent of the 
 regular administrator (m), has yet taken a grant of the 
 whole administration, and this is transferred to the person 
 entitled thereto, when either the expiration of the limited 
 time, or the happening of the specified event, shall enable 
 him to claim it. In short, while the grant de bonis is one 
 intended to effect the completion of an interrupted adminis- 
 tration, by the appointment by the Court of a new repre- 
 sentative, the grant cessate is " a renewal of the entire 
 original grant " {n), to some person strictly entitled to it, 
 and who assumes the same position as that held by the 
 temporary agent, and can act as though no temporary 
 administration had intervened. 
 
 Sometimes when the amount of security in an adminis- Distinction 
 tration bond is discussed, and there is a doubt as to ^portant 
 whether the grant is cessate or de bonis, it is important 
 to decide the question. Why this is so will appear from 
 the consideration that the cessate grant is, as we have 
 seen, a grant of the whole administration, and that the 
 general principle upon which the law proceeds in ad- General 
 ministration bon\is is to make the penalty in them the"c™rt°^ 
 double the actual value of the estate (o). Thus, where *" penalty iu 
 
 administration 
 bond. 
 
 (m) See note (to), previous page. as to penalty of bond ; and for the 
 (k) G. Browne's Prob. Prao. practice as to number of sureties 
 242. required, see Coote's Prob. Prac. 
 
 (o) See 20 & 21 Vict. c. 77, s. 82, 98. 
 
 3 £ 
 
738 
 
 WILLS OF PERSONAL PEOPERTY, 
 
 Diminution of 
 estate not 
 considered ; 
 
 Unless a large 
 portion has 
 been ad- 
 ministered. 
 
 One of 
 
 several 
 
 executors 
 
 taking 
 
 probate. 
 
 "Reservation 
 as to rest " — 
 its meaning.. 
 
 A., the executor to a "Will, died, and another, B., substi- 
 tuted in case of A.'s death, renounced his claim to the 
 office, administration with the Will annexed was granted 
 to a legatee. This grant was held to be cessate, and not 
 de bonis, that is, the legatee took a re-grant of the entire 
 administration, and was therefore obliged to give security 
 to double the amount under which the estate was sworn 
 at the time of testator's death, according to the usual 
 practice (jj) in cases of original administration. 
 
 From the circumstance that a cessate grant is really 
 the original one transferred to another person, and not 
 merely administration of unadministered goods, the general 
 rule is that, notwithstanding the diminution of the estate 
 during the temporary administration by the distribution 
 of assets, the cessate grantee must swear the estate of 
 which he takes possession at the same value that his pre- 
 decessor did, and also give security to the same amount 
 as was given in the first instance (5). 
 
 But if nearly the whole of an estate has been dis- 
 tributed at the time when the temporary administration 
 terminates, the Court in ordinary cases, will make the 
 cessate grant upon security being given to the amount 
 of double the value of the property remaining un- 
 administered (r). 
 
 If there be several executors of equal position, and one 
 takes probate, although one probate is enough, yet the 
 grant goes with a reservation to the rest ; that is to say, 
 the Court reserves to itself the power to grant probate to 
 the other executors on their applying for it. They, or one 
 of them, can do this at any time, on making an affidavit, 
 after which an engrossment of the original Will is annexed 
 
 {p) In the goods of Fozard, 3 
 Sw. & Tr. 173 ; 32 L. J. P. & M. 
 160 ; 20 & 21 Vict. c. 77, ss. 81, 
 82. 
 
 (}) This was the exact point de- 
 cided in Abbott v. Abbott, 2 Phill. 
 678. There had been an adminis- 
 
 tration durcmte minoritate, and the 
 Court, it would seem, suspected 
 fraud on the part of the applicants 
 for the cessate grant. 
 
 (r) /« the goods 0/ Fozard, supra, 
 n. (p). 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 739 
 
 to the second ptobate in the same manner as to the first 
 grant. In the second, the first grant is recited ; and so 
 of the rest. This is styled a double probate (s), the Double 
 practice in obtaining which is, 'mutatis mutandis, the ^™ * *' 
 same as in obtaining original grants (t). 
 
 Instances occasionally occur, as we have seen at p. 481, Commorientes, 
 
 1 • 1 • 1 , , ,0'^ persons 
 
 where two persons possessing the right to represent one dying together. 
 another in case of one surviving the other, die together 
 in some accident or other disaster ; and, of course, in such 
 cases it is generally difiicult, and often impossible, to dis- 
 cover who was the actual survivor. When, however, 
 survivorship is sought to be proved, the establishment of 
 the fact will depend entirely upon evidence, and if none 
 be forthcoming, the persons must not be taken to have 
 died simultaneously, but the result is, that there is no 
 conclusion of law at all on the subject. 
 
 The law, then, will never presume that two or more Nopresnmp- 
 persons died at the same instant of time in any calamity, asTothe*^ 
 nor will it presume the survivorship of any particular simultaneous- 
 individual ; but in cases of the kind now under consider- nor as to the ' 
 ation, will consider, in the absence of contrary evidence, suryivorship of 
 
 particular 
 
 that one of them survived the other or others, and then person, 
 by evidence endeavour to discover which of them it was. 
 If there be no evidence adducible, then the law — as we 
 have seen- — presumes nothing. 
 
 " By the Civil Law, and in foreign codes, several rules Ciril Law and 
 are laid down for the directions of Courts in ascertaining: ^^^'gi <=°'i^^ 
 
 i^ on the 
 
 the fact of survivorship where several persons have perished subject. 
 in the same calamity. No very definite rule has been 
 adopted in this country upon the subject ; but there ap- 
 pears to have been a leaning to consider the person 
 possessed of the property in dispute to have survival : and 
 some regard appears to have been paid to the probability 
 of the survival of the stronger party " (u). But now there No preaump- 
 
 (s) Toller, Exors. 66. Coote, (e) G. Browne, 149. 
 
 260 et seq. G. Browne's Prob. Prac. (a) Phillipps on Evidence, I. 449 
 
 148, 149. (1843}. 
 
 3 B 2 
 
''*0 WILLS OF PEESONAL PKOPERTY. 
 
 TivorsMrn'ow ^^ ^° presumptioa arising from age, sex, physical strength, 
 
 from age, or Other Circumstances (x). 
 
 &c.', &o!° ' ^^^ °f two persons may be entitled to succeed the 
 other, either by virtue of a Will, or in consequence of an 
 intestacy. 
 
 Practice of tlie The practice of the Probate Division in cases where 
 
 Di-rision. husband and wife or other persons entitled in succession 
 
 perish together in some calamity, and it cannot be dis- 
 covered which of them was the survivor is thus stated by 
 Lord Penzance, J. 0. After referring to the cases men- 
 tioned below (y), his lordship says : — " The mode in which 
 the Court deals with such a state of things is to hold that 
 if the next-of-kin of the husband come forward and claim 
 administration to the wife on the ground that the husband 
 was the survivor, they must prove that fact affirmatively ; 
 and conversely, if the next-of-kin of the wife come for 
 administration of the estate of the husband, they must 
 show that the wife surv,ived her husband. It appears to 
 me that these cases have no application to the present 
 one in which the husband and wife did not perish 
 together" (z). 
 
 The case from which the above remarks are taken, was 
 what Lord Penzance calls the common one in which a 
 wife dies, and there being no evidence that she survived 
 her husband, her next-of-kin must show that the husband 
 died first. The facts of the case were these : — A., a married 
 woman, was entitled, under the two separate Wills of B. 
 and C, to two separate sums of money on the death of her 
 mother, D. A.'s husband was in 1845 convicted of felony 
 and sent to Australia, where he was last heard of in 1853. 
 
 (k) See Mason v. Mason, 1 Mer. Curt. 705 ; Wing v. ATigrave, 
 
 308 ; Judgt. of Sir W. Grant, M. E. ; supra ; In the goods of Wainvrright, 
 
 Underwood v. Wing, 19 Beav. 459 ; 1 Sw. & Tr. 257 ; 28 L. J. P. & 
 
 23 L. J. Ch. 982 ; affirmed in 4 M. 2 ; /» the goods of EwaH, 1 Sw. 
 
 De G. M. & G. 633 ; 24 L. J. & Tr. 258. 
 
 Ch. 293, mentioned ante, p. 481 ; (z) In the goods of Nichols, L. 
 
 affii-med as Wing v. Angrave, 8 H. R. 2 P. & D. 461 ; 41 L. J. P. & M. 
 
 L. Cas. 183 ; 30 L. J. Ch. 65. 88. 
 
 (y) Satterthwaite v. Powell, 1 
 
PKACTICE OF THE HIGH COURT IN PROBATE MATTERS. 741 
 
 A. died intestate in 1856, and her mother, D., died in 
 1864. Three of A.'s brothers survived, and one of them 
 as A.'s next-of-kin claimed administration of her estate, 
 consisting of the legacy in which D. had enjoyed a life 
 interest. It was contended that he was entitled to the 
 gi-ant, unless it could be shown that the husband survived 
 the wife ; but Lord Penzance held, that as there was no 
 evidence that A. had died a widow, which it is imperatively 
 necessary to do in such cases by affidavit, her next-of-kin 
 was not entitled to administration without citing the 
 husband's representatives. 
 
 Of course, where husband and wife perish together, the 
 next-of-kin cannot make an affidavit as to survivorship ; 
 but in such a case, the ordinary form of oath may be 
 modified to suit the circumstances (a). 
 
 In these cases, as in others of a different stamp, a pre- Presumption 
 sumption of law often arises, liable to be rebutted by evi- seven years' 
 dence, that a person not heard of during the period of seven absence, &e. 
 years has ceased to exist ; but this presumption relates only 
 to the fact of death, and not to the precise time of death. If, Presumption 
 therefore, it is necessary to show that A. is dead, and it j^^'^t the 
 appears that for seven years he has never been heard of, '^^e of death. . 
 the law, in the absence of evidence to the contrary, will 
 presume his decease. But should it be important to prove 
 A.'s death on some particular day, the law ia that case 
 presumes nothing, but requires the alleged fact to be 
 established by evidence of some sort beyond that of the 
 mere lapse of seven years since A. was last heard of (b). 
 
 Sometimes, however, a person's death may be pre- Inference 
 sumed, or, to speak more accurately, inferred to have ^t^**^ 
 happened within a shorter period of time ; but in such shorter period 
 
 of time. 
 
 (a) In the goods of Wainwright, TniMs, L. E. 5 Ch. 139 ; 39 L. J. 
 
 1 Sw. & Tr. 257 ; 28 L. J. P. &M. 2. Ch. 316, which overruled no less 
 
 (J) See the judgt. of the Q. B. than four comparatively recent cases 
 
 delivered by Lord Denman, C- J. on the subject, viz. , ZamSe v. Orion, 
 
 in Nepeom v. Doe d. Knight, 2 Be Benham's Trusts, Dunn v. 
 
 Smith, L. C. 319 ; 2 M. & W. 894 ; Snmodon, and Tlimnas v. Thomas. 
 7 L. J. Ex. 335 ; In re Phene's 
 
74.2 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Application 
 for adminis- 
 tration prema- 
 ture. 
 
 Payment by 
 underwriters 
 for a total loss 
 will guide 
 to the Court 
 of Probate in 
 these cases. 
 
 Character of 
 facts required 
 to raise the 
 presumption 
 of death. 
 
 cases the inference is deduced from well authenticated 
 facts of such a nature as to almost preclude the possibility 
 of mistake. Thus, where the master of a ship, on 
 January 27th, 1857, set sail from L. to proceed to V., at 
 which place the ship never arrived, and nothing had been 
 seen or heard of the ship or crew since she sailed, and the 
 underwriters had paid as for a total loss, it was held that 
 the death of M. in or since January, 1857, might be 
 inferred, although the average duration of the voyage 
 from L. to V. was ten weeks (c). 
 
 In another case, however, where the captain of a ship 
 set sail on October 23rd, 1858, and was supposed to have 
 perished with his ship and crew, during a hurricane, and 
 application was made on March 30th, 1859, for a grant of 
 administration of his effects, the Court held the applica- 
 tion premature, as the captain and crew might have been 
 picked up by some other ship bound on an outward 
 voyage. But on June 22nd of the same year, the under- 
 writers having paid as on a total loss, and nothing having 
 been heard of the missing ship or her crew, administration 
 was granted (d). 
 
 What kind of facts are sufficient to raise the presump- 
 tion, or rather, perhaps, inference of death may be seen 
 by inspecting the report of the case cited below (e). 
 There, an individual of dissolute habits, but who lived 
 in constant communication with his friends and relations, 
 was entitled to the half-yearly dividends payable out of 
 a certain fund, which he was accustomed to demand and 
 receive on their becoming due. He was last seen on 
 August 12th, 1860, in an almost dying condition, and as 
 he did not apply for his dividends in October, these facts, 
 taken in conjunction with the other circumstances of the 
 case, were held to raise the presumption or inference 
 
 (c) In the goods of Main, 1 Sw. 
 &Tr. 11 ; 27" L. J. P. ft M. 5. 
 
 {d) In the, goods of Bishop, 1 Sw. 
 & Tr. 303 i 28 L. J. P. & M. 93. 
 
 {$) In re Beasney's Trusts, L. E. 
 7Eq. 498; 38 L. J. P. & M. 159. 
 See, also, Lakin v. Lakin, 34 Beav. 
 443. 
 
PRACTICE OF THE HIGH COURT IN PROBATE MATTERS. 743 
 
 that he had died before November 14th in the same 
 year (/). 
 
 Our sketch of the practice of the Probate Division of 
 the High Court of Justice must here close, but we may- 
 inform the reader that all the details of the foregoing out- 
 line — for such only it is — can be supplied by the two able 
 and exhaustive treatises so frequently cited therein, 
 namely, those of Mr. Coote and Mr. G. Browne (g). 
 
 (/) As to the form of procedure generally. That portion of the 
 
 for the settlement of these questions latter work which describes the 
 
 in the Probate Division, see Pepper- practice In contentious business, 
 
 corne v. Gardner, L. E. 3 P. & D. must now, however, — as our own 
 
 149. introductory description in the text 
 
 ig) The former, we repeat, deals shows — be read by the light of the 
 
 with the Common Form Practice Judicature Acts, and the Orders 
 
 only, the latter with the Principles and Rules made thereunder, 
 and Practice in Probate matters 
 
«TTORNEY 
 
 I COUNSELOR at LAW , 
 
 CHAPTEK XII. 
 
 A teBta- 
 mentary paper 
 duly executed, 
 but naming no 
 executor, may 
 be proved as 
 a Will. 
 
 Intestacy as to 
 residue of 
 
 Intestacy 
 partial or 
 gudsif and 
 complete. 
 
 ON THE DISTRIBUTION OF AN INTESTATES PERSONAL 
 ESTATE UNDER THE STATUTES OF DISTRIBUTION. 
 
 It not unfrequently happens that a person makes, and 
 duly executes, a testamentary paper containing full direc- 
 tions as to the destination of his personal property after 
 his decease, but omits to appoint an executor to effectuate 
 his wishes. Now, although a document of this character 
 is not technically speaking a Will, yet it may be proved 
 as a Will by a person duly appointed by the High Court 
 of Justice. Such person is in the eye of the law merely 
 an administrator, an officer appointed by the law, but yet, 
 unlike an ordinary administrator, he must follow the 
 directions contained in the imperfect testamentary paper, 
 just as though he had been appointed executor by the 
 person who wrote it. Hence the position of an adminis- 
 trator cum testaviento amnexo, is practically identical with 
 that of an executor (a). 
 
 Again, it may happen that a testator duly makes and 
 executes a proper Will, — that is, with the appointment of 
 executors, — bequeaths legacies, arranges for the payment 
 of his debts, &c., &c., but yet fails to make any disposition 
 of his residuary personal estate. 
 
 In each of the above instances the deceased person is 
 regarded as having died intestate ; not of course wholly so, 
 for in both cases the intestacy is obviously but partial in 
 its character (6). To this kind of imperfect testacy, or 
 semi-intestacy, the term quasi is often applied, the use 
 
 (a) As to other states of circum- 
 stances in which administration 
 cvrni testamento annexo issues, see 
 ante, pp. 69, 60 ; also 20 & 21 Vict. 
 
 c. 77, s. 73. 
 
 (6) As to the position of an exe- 
 cutor in regard to his testator's un- 
 disposed of residue, see ante, p. 497. 
 
THE DISTRIBUTION OF AN INTESTATe's' ESTATE.; :;;;; i ''745 
 
 of which is to mark the difference between the case 
 of a person leaving a testamentary instrument of some 
 kind — which by reason of its inherent or accidental ' 
 defectiveness, necessitates the appointment of an ad/minis- 
 trator to carry it into effect — and that of a person leaving 
 no testamentary paper of any kind whatever. In the latter 
 case, there is said to be a total — or complete intestacy, 
 and our present purpose is to inquire how the personal 
 estate of a person dying wholly intestate is to be divided 
 amongst those who have a legal right to share his 
 property, for the Statutes of Distribution apply only to 
 the effects of persons so dying. 
 
 According to Blackstone (c), in very early times, the What became 
 king, as parens patrice, was entitled to take possession of Jat^^s'^^Ts in 
 the goods of an intestate, and the same writer also tells the old times. 
 us that this branch of the royal prerogative was delegated ,^Xt to1;hem. 
 to lords of manors and others who acquired a prescriptive 
 right to grant probate of the Wills, or administration 
 of the effects, of their suitors and tenants (d). The next Second phase 
 phase in the history of the present subject, is the transfer °j ^^^ ^uVeat 
 of this power or usage from the kings to the heads of the clerical admin- 
 Church, who were thought to have more tender consciences istration. 
 than laymen, and also to be better capable of judging as 
 to " what things would conduce to the benefit of the soul 
 of the deceased." The Ordinaries, accountable to no 
 one, had unlimited power over the intestate's property, 
 and they were held to commit a breach of confidence only 
 if they failed to dispose of the proceeds thereof to pious 
 uses, that is for the good of the intestate's soul ! As a 
 matter of course, "the reverend prelates" were the 
 persons most benefited by the arrangement in question, 
 and the "lengt.h of iniquity to which this abuse was 
 carried" is dwelt on by Blackstone, who says that the 
 clergy took to themselves the whole residue of the estate, 
 after the partes rationabiles, or two-thirds, of the wife 
 
 (c) 2 Oomm. 494. kind were swept away by the Pro- 
 
 (d) All prescriptive rights of this bate Act, 1857, see ante, p. 666. 
 
746 
 
 WILLS OF PEESONAL PEOPBKTY, 
 
 Third phase. 
 The ordinaries 
 compelled to 
 pay the intes- 
 tate's debts. 
 
 The intestate's 
 residuary 
 property with- 
 held from his 
 family. 
 
 Foarth phase. 
 Administration 
 committed to 
 the intestate's 
 next and most 
 lawful friends. 
 
 31 Edw. 3, 
 Stat. 1, 0. 11, 
 the origin of 
 the present 
 law of admin- 
 istration. 
 
 and children were deducted, and without even paying the 
 deceased's lawful debts, or other charges on his estate. 
 
 This non-payment of the intestate's debts out of his 
 estate — probably the worst feature in the outrageous 
 system above described — was the first object of attack on 
 the part of the legislature, which in AD. 1285 passed an 
 Act (e), declaring that the ordinai-y " from henceforth shall 
 be bound to answer the debts as far forth as the goods of 
 the dead will extend," just as executors would be under a 
 Will. 
 
 This statute, however, said nothing about what should 
 be done with the residue of the estate after payment of 
 debts ; accordingly, the souls of intestates continued 
 for about seventy years longer to be objects of the same 
 interest and tender solicitude as before. In 1357 
 (31 Edward III.) the legislature again directed its atten- 
 tion to this subject, whereupon was passed a statute (/), 
 which provided that " where a man dieth intestate, the 
 ordinaries shall depute the next and most lawful friends 
 of the dead person to administer his goods," who were to 
 be accountable to the ordinaries, and to be in the same 
 position as to suing and being sued as executors. " This," 
 says Blackstone {g), "is the original of Administrators, as 
 they at present stand ; who are only the officers of the 
 Ordinary (k), appointed by him in pursuance of this statute, 
 which singles out the next and most lawful friend of the 
 intestate ; who is interpreted to be the next of blood that 
 is under no legal disabilities " (i). 
 
 («) 13 Edward I. c. 19. Statute 
 of "Westminster, 2. 
 
 (/) Stat. I. c. 11 ; see also ante, 
 p. 693. 
 
 (g) 2 Comm. 496. 
 
 (h) Before the Judicature Acts, 
 they might have been so styled, but 
 since these statutes it would appear 
 that administrators are reallyoffiiers 
 of the law or of the High Court of 
 
 Justice. 
 
 (i) The learned writer then goes 
 on to speak of the provisions of the 
 Statute 21 Hen. VIII. c. 5, to which 
 we have already alluded, ante, 
 p. 693, etseq., but see 20 & 21 Vict, 
 c. 77, s. 80, and the Statute Law 
 Revision Act, 1863, 26 &; 27 Vict. 
 c. 125. 
 
THE DISTRIBUTION OF AN INTESTATE'S ESTATE. 74? 
 
 But neither the Act of Edward III. nor that of 
 Henry VIII. had any reference to the disposition of an 
 intestate's surplus, or as we now say, residuary personal 
 estate. Accordingly, just as the ordinaries were originally Residue still 
 accustomed to retain this — although in consequence of the t^g^^^infs- 
 statute of Edward I., only after paying the deceased's trator. 
 debts — so, subsequently to the Act of Henry VIII., every 
 administrator continued to be able to withhold the intes- 
 tate'p residue from his next-of-kin. And when we say 
 "every administrator," we mean that an administrator 
 cuTn testamento aniiexo also possessed the power to defeat 
 the rights of legatees under the informal Will, the terms 
 of which he was really appointed to carry out. This gross 
 standing fraud — one not only on private interests, but also 
 on public policy — was, however, allowed to exist until the 
 year 1670, when once more the legislature intervened 
 and passed the celebrated Statute of Distribution, the piftji ^nd last 
 main provisions of which remain to this day (k). These phase. The 
 provide generally, that after payment of an intestate's residue to be 
 debts, funeral, and other expenses, the administrator of distributed to 
 his estate must distribute what may remain to his widow, children, or 
 children, or next-of-kin. next-of-kin. 
 
 At the time when the Statute of Distributions was Customs exist- 
 passed there existed customs peculiar to certain places and ™g ** ^^^ *i™« 
 localities, connected with the subject of the Act. These it statute of 
 left untouched, and indeed specifically mentioned as not I'lstributions, 
 
 _ -^ •/ were untouched 
 
 coming within the scope of its operation (section 4). The by that Act, 
 customs in question, namely, those which were observed 
 
 (k) Known as the Statute of Dis- dsdng before Dec. 31, 1856. The 
 tributions, 22 & 23 Car. 11. c. 10, Statute 19 & 20 Vict. c. 94, also 
 tbe correct title of which is — "An abolishes special customs concern- 
 Act for the better settling of Intes- ing the distribution of personal 
 tates' Estates." Ithas been altered estatesofintestatesincertain places, 
 by 19 & 20 Vict. c. 94 (An Act for See also 20 & 21 Vict, c 77, s. 80 
 the Uniform Administration of In- (Court of Probate Act, 1867), and 
 testates' Estates) which repeals its the Statute Law Revision Act, 1863, 
 4th section, and also part of 11 G. I. ante, n. (i). 
 c. 18, except as to estates of persons 
 
748 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 but were all 
 abolished in 
 1866, and the 
 law brought 
 into a state of 
 uniformity. 
 
 Nature of the 
 inquiry as to 
 the distribu- 
 tion of an 
 intestate's 
 estate. 
 
 Bond of 
 
 administrator, 
 under 22 & 23 
 Car: 2, 0. 10, 
 
 and under the 
 present law. 
 
 in the province of York (excepting in the diocese of 
 Chester), the City of London, and other places continued 
 to exist until January 1, 1857, when they were all abolished 
 by 19 & 20 Vict. c. 94, which enacted that after the above 
 date the estates of all intestates dying in England and 
 Wales shall be administered in one uniform manner, that 
 manner being in accordance with the mode of distribution 
 which had been observed since 22 & 23 Car. II. c. 10, in 
 the Province of Canterbury [l), and just as if no such 
 customs had ever existed. 
 
 Having thus cleared the ground for a consideration of 
 our present subject, namely, the legal mode of dividing 
 the residue of an intestate's personal estate amongst his 
 relatives, we may state that this will consist, for the most 
 part in an examination of the terms of the Statute of 
 Distribution, together with references to some cases that 
 have been decided thereon (m). 
 
 The first [provision in this Act concerns the power of 
 ordinaries and other persons, who at the time of its passing, 
 had the right of granting administration of an intestate's 
 effects, to demand from the administrator a bond for the 
 due performance of the duty undertaken by him. This 
 portion of the Act, and also such parts of 21 Henry VIII. 
 c. 6, and 1 James II. c. 17 (the second Statute of Distribu- 
 tion) as refers to administration, bonds, &c., was repealed 
 by the 80th section of the Court of Probate Act, 1857, 
 20 & 21 Vict. c. 77. But the next section of the latter 
 statute declares that every person to whom any grant of 
 administration shall be committed shall give bond' to the 
 
 (Z) In the present work it has not 
 been thouglit necessary to do more 
 than merely mention the previous 
 existence of these customs. A full 
 description of them will be found in 
 2 Wms. Exors. pt. 3, bk. i, ch. 2, 
 1527, et seq. ; Toller, Exors. 373, 
 400, 403 ; and in 4 Burn's Eco. 
 L. by Phillimore, 564. 
 
 («) This statute has already been 
 
 referred to generally on various 
 pages of this work. But see the 
 interesting judgment of Wickens, 
 V.-C, in Me Soss's Trusts, L. E. 
 13 Eq. 286 ; 41 L. J. Ch. 130. 
 
 N.B. — In the present chapter, 
 we shall always refer to the Act as 
 it at present stands in Vol. I. of 
 the edition of the Revised Statutes, 
 p. 767 (A.D. 1870). 
 
THE DISTRIBUTIOJvr OF AN INTESTATE'S ESTATE. 719 
 
 judge of the Court of Probate, and if the judge or the Sureties of 
 registrar of a District Registry shall require, also with one 
 or more surety or sureties conditioned for duly collecting, 
 getting in, and administering the deceased's personal 
 estate. This bond shall be in a penalty of double the 
 amount under which the estate is sworn, unless the judge 
 or a district registrar — where the matter is before the Discretion of 
 latter — may think proper to direct the same to be reduced, ^(j-s^ot"^ 
 and each of these functionaries has the power to do this, registrar to 
 The judge or district registrar may also direct that more of bond, and 
 bonds than one shall be given so as to limit the liability of *^ *° number 
 
 , „ 1 . . ■'of bonds. 
 
 any surety to such amount as the Court or district registrar 
 shall think reasonable (section 82). 
 
 It will be seen that the terms of the above statute are Bond itself 
 peremptory as to the bond itself, and the judge has no pe™ed \ritk " 
 power to dispense with one in any case (n). The judge 
 or district registrar clearly has, however, a discretion by the 
 terms of the Act as to the number of sureties to the bond, 
 and also as to the amount of the penalty to the bond (o). 
 
 The next provision in the Statute of Distributions is to 
 enable Ordinaries and others, then having the right to Provision of 
 grant administration, to call upon administrators to ac- ^ jg ^^ ^' ' 
 count for and touching the goods of the intestate, and to distribution of 
 order distribution of "what remaineth cleare (after all property, 
 debts, funeralls, and just expenses of every sort first 
 allowed and deducted) amongst the wife and children, or 
 children's children, if any such be, or otherwise to the 
 next of kindred to the dead person in equall degree, or 
 representing their stocks (p) pro sui cuique jure (q) 
 according to the lawes in such cases, and the rules and 
 
 (w) InfhegoodsofPowis,WU.J. (o) See Coote, 99, 136, 140, 231, 
 
 P. & M. 55, citing In the goods of as to sureties justifying, and the 
 
 OeTVt,! Sw. & Tr. 54 ; 27 L. J.P. & M. Eules of Practice concerning Admiu- 
 
 37, whereadministrationwasgranted istration bonds, 
 to an intestate's mother, on her (p) Stipes or stem : see ante, p. 
 
 giving a bond with sureties for 701, where this term is contrasted 
 
 double the amount of the intestate's with stirps or root. 
 
 (q) Ante, p. 700, Sinipost, 755. 
 
750 
 
 WILLS OF PERSONAL PROPERTY. 
 
 How distribu- 
 tion is to be 
 made. 
 
 Rigbts of 
 widow 
 
 and cbildren 
 under the 
 statute. 
 
 Example of the 
 application of 
 the statute, 
 where an 
 intestate leaves 
 a wife and 
 cbildren. 
 
 limitation hereafter sett downe, and the same distributions 
 to decree and setle, and to compell such administrators to 
 observe and pay the same by the due course of his Majestyes 
 ecclesiasticall lawes." 
 
 The statute then proceeds to direct that the surplusage 
 [residue] of the intestate's personal estate shall be divided 
 in a specified way, under the various sets of circumstances 
 enumerated. In the first place,, we learn that if an intes- 
 tate die, leaving a widow and children, then primd, 
 facie (r), one-third shall go to her, while the rest is to be 
 equally divided amongst the children, and such persons as 
 legally represent such children in case any of the said 
 children be then dead. This being so, if A. dies intestate, 
 leaving a widow, W., and three children, D., E., F., and 
 there is no question of settlement, advancement, or por- 
 tion (r), then W. will take one-third of A.'s residuary 
 personal estate, and D., E., F., will each take one-third of 
 the residue, or two-ninths of the whole. Thus, if A.'s 
 
 Bights of 
 children abso- 
 lute only when 
 unaffected by- 
 settlements, 
 advancements, 
 or portions. 
 
 Note as to 
 extent of 
 Widow's rights 
 generally. 
 
 (r) We say " primd facie," be- 
 cause the statute says — "other than 
 such child or children (not being 
 heir-at-law) who shall have any 
 estate by seitUmeiit of tlie' intestate, 
 or shall be advanced by the intes- 
 tate in his lifetime by portion or 
 portions equal to the share which 
 shall by'such distribution be allotted 
 to the other children, to wbom such 
 distribution is to be made. We 
 shall refer to these subjects again 
 presently. See post, p. 76i, et seq. 
 
 N. B. — The widow of an intestate 
 can in no case secure more than a, 
 moiety, that is one-half, of his re- 
 siduary personal estate. Thus, if 
 the intestate leave a widow, and no 
 children or lineal descendants, but 
 next-of-kin, she will take one-half 
 the property, and the next-of-kin 
 the other (22 & 23 Car. II. c. 10). 
 If he leaves a widow and no next-of- 
 kin, she is still entitled only to one 
 
 moiety, the other belonging to the 
 Crown. Moreover, her claim to 
 any share under her husband's in- 
 testacy may be barred by the terms 
 of her marriage settlement. See on 
 these subjects, 2 "Wms. Exors. pt. 3, 
 bk. 4, ch. 1, § 2, 1490, etseg. Again, 
 the widow not being of kin to her 
 husband, claims simply as his widow, 
 and she is the only connexion by 
 affinity who can take under tlie 
 Statute of Distributions. If, there- 
 fore, a person had a son and a 
 daughter and both die, leaving, the 
 one a wife and the other a husband, 
 should that person die intestate, sur- 
 viving the widow and widower, 
 they can take no portion of the 
 intestate's property, for they are not 
 his relatives by consanguinity, but 
 only his connexions by aflBsity, 
 that is by marriage ; Toller, Exors. 
 
THE DISTRIBUTION OF AK INTESTATE'S ESTATE. 751 
 
 residue under the above circumstances, be worth £4500, 
 W.'s share will be £1500, while D., E., and F. will each 
 take £1000. 
 
 Again, supposing D., E., and F. to have all died in the When ibtestate 
 lifetime of their father, the intestate, each leaving two children' b'ut'^'' 
 children. Now, these latter will " legally represent " their grandchildren. 
 deceased parents (s), and will be entitled to the same pro- 
 perty that the parents would have taken had they survived 
 their parent, the intestate. But the following questions 
 here present themselves : — First, how do these grand- 
 children take the property ? Second, to what share is 
 each entitled ? and these queries bring us to an examina- 
 tion of the well-known expressions per capita and per Examination of 
 stirpes (t). In the case which we have put, there are capita and per 
 descendants, but no children of the intestate, living at his ***''i'««- 
 death, and under such circumstances, his descendants — 
 the children of his dead children — take as not by repre- 
 senting their parents, but in the eye of the law as in their 
 own right, or, as it is ordinarily expressed, per capita, that 
 is to say, as distinct individuals, all sharing in the property 
 alike. The estate — assuming the intestate to have left no 
 widow — must be divided into six parts, according to the 
 nurdber of the intestate's descendants, the six grand- 
 children, who will each take one share in his own right. 
 And although, as we say below (s), the term " next-of- 
 
 (s) "It has long been settled that applied to collateral relatives, 
 the word ' representatives ' in this (t) These terms are equally em- 
 Act includes only desceiidcmis." ployed when investigating the rights 
 Per "Wickens^ T.-O. in He Moss's of children under Wills as under 
 Trusts, L. E. 13 Eq. 286 ; 41 L. J. intestacies. See e.g. Barnaby v. 
 Oh. 133. Speaking strictly and Tassell, L. E. 11 Eq. 363 ; Payne 
 technically a descendantis not an in- v. Webb, L. E. 19 Eq. 16. In Re 
 testate's next-of-kin, that is to say. Moss's Trusts there was a, WiU, in 
 he is more than that, and in a legal which the testator left his property in 
 sense, a next-of-kin is not usually a trust for certain persons who would 
 lineal descendant. Of course the in the event of his dying intestate 
 child or grandchild of an intestate and in default of his daughter dying 
 must he nearest in blood to him and without issue, be then entitled to 
 so next-of-kin ; but the term next- share his property under the 
 of-kin is technically and generally statutes. 
 
752 WILLS OF PEESOIfAL PROPERTY. 
 
 kia " is not usually applied to lineal descendants, yet in this 
 case the grandchildren may be styled next-of-kin of the 
 intestate, for they are such in every sense of the expression. 
 Generally, therefore, where an intestate leaves grand- 
 children, but no children and no wife, and there is no 
 question of advancement, &c. (u), they take the property 
 fer capita, in other words, they share and share alike. 
 ^'°*"™ °*, The late Vice- Chancellor Wickens, however, in his judg- 
 
 V.-C. Wiokens • n n , m / \ • t -i 
 
 in Re Ross's ment m Re Ross s Trusts {x), IS reported to have said 
 Trusts. ^jjg^|. « j£ ^jjgjg g^jg descendants, but no children living to 
 
 share the estate, it is to be divided into as many shares as 
 there were children who have left living descendants, and 
 that the descendants of each such child are to take as 
 representing the child, and of course only the child's 
 share." If, however, this be the true rule applicable to all 
 cases, then in that which we have been supposing, and 
 which is one where no children,h\it only their descendants 
 survived the intestate, we must have given each of the 
 two children of D., E., and F., one-half of one-third of the 
 property. In this particular case, such mode of division 
 would have produced the same result as giving them one- 
 sixth each, simply because there were six persons to share 
 the estate. But let us assume that D. left two, E. three, 
 and F. four children ; then, according to the Vice- 
 Chancellor's statement, the estate would, in the first place, 
 have to be divided into three parts, corresponding with the 
 number of the intestate's children, and as D. left two chil- 
 dren, each of these would take one-half of one-third ; E.'s 
 children would take one-third of one-third, and F.'s chil- 
 dren each one-fourth of the remaining third. It is obvious 
 that this is not an instance of the descendants sharing 
 property alike, or in their own right, or per capita, but the 
 participators take simply by virtue of representing their 
 parents, and they take in unequal portions. This furnishes 
 an illustration of that other mode of taking, namely, per 
 
 (a) See note (r) at p. 750, and {x) L. E.. 13 Eq. 286 ; 41 L. J. 
 
 post, pp. 764, 767. Ch. 133. 
 
THE DISTRIBUTION OF AN INTESTATE'S ESTATE. 753 
 
 stirpes, " i.e. by the roots, because all the branches from any 
 root take among them that share which the root or stirpes 
 from whom they spring would, if living, have taken " {y). 
 
 The remarks of Vice-Chancellor Wickens just cited seem 
 to indicate that some confusion exists on this subject, 
 because if we read them aright, there appears to be no 
 case in which lineal descendants can take shares of an 
 intestate's estates per capita but only per stirpes. But 
 we must remember, that the point decided by Re Ross's 
 Trusts (z) is that if an intestate leaves no children, but 
 grandchildren and great-grandchildren only, they take 
 per stirpes and not per capita; but in the last edition 
 of Williams on Executors (a), it is stated that, if an 
 intestate's children and grandchildren have all predeceased 
 him, and he leaves great-grandchildren, these will take 
 per capita and not by representation. In Re Ross's 
 Trusts, however, there were grandchildren and great- 
 grandchildren, who claimed by two lines of descent from 
 their common ancestor (6). The case was in other respects 
 of some peculiarity, and, moreover, was one primce im- 
 pressionis. Probably we may regard the dictum of the 
 very learned judge to which we have referred as being 
 appropriate to the particular circumstances before him, but 
 not as applicable generally, unless the recognised view of 
 the doctrine of distribution per capita among descendants 
 is to be dismissed as erroneous. 
 
 It may, however, be considered certain that, in the event 
 of another set of circumstances analogous to those in Re 
 Ross's Trusts coming before the Court, the views of the 
 
 (y) Mascall's Digest of the Law p. 375, but it still remains In the 
 
 concerning tlie Distribution of the text of Williams on Executors, and 
 
 Personal Estates of Intestates, the learned editors of the last 
 
 p. 16. edition, the 7th, have referred to 
 
 (z) Swpra, n. [x). Be Boss's Trusts only as being con- 
 
 (a) Vol. II. pt. 3, bk. 4, oh. 1, trary to the statements in Toller. 
 § 3, li97. V.-C. Wickens in Be (b) The reader will find in the 
 
 iJoss's 2V«sfe, deprecates the doctrine* Laio Beports a table of descent 
 
 there expressed, and also by Toller, illustrating this case. 
 
 3 
 
754 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Summary of 
 the law as to 
 rights of an 
 intestate's 
 children. 
 
 learned Vice-Chancellor who decided that case will prevail ; 
 that is to say, where there are grandchildren and great- 
 grandchildren existing who survive the intestate. 
 
 The doctrine of distribution per stwpes, may perhaps be 
 more plainly exhibited thus : — Taking the same persons 
 mentioned at p. 750. Suppose that D. alone predeceases 
 his father. A., and leaves two children who survive A., 
 what are the rights of these children under these circum- 
 stances, and to what share will each be entitled ? The 
 children here will stand in the place of their parent, D., 
 whom, as his lineal descendants, they will " legally repre- 
 sent," and they will take between them the same that he, 
 had he lived, would have taken at his own father's death. 
 Thus, if the intestate did not leave a widow, E., F., and 
 D.'s two children share A.'s residue, E. and F. each getting 
 a third — per capita as between themselves — and the chil- 
 dren of D. sharing half the remaining third equally ; that 
 is to say, each securing one-sixth, not, however, by virtue 
 of their own right, but jure representationis, or in other 
 words, per stirpes, or in right of the stocks from whom 
 they sprang (c). 
 
 To summarise what has been stated or indicated, in this 
 and the previous chapter, as to the rights of an intestate's 
 children to his residuary personal estate, we may say that 
 if there be no widow, the children take the whole; if 
 there be a wife she takes one-third, and the children the 
 remaining two-thirds. And all children of an intestate {d), 
 whether male or female, whether of the whole or half- 
 blood, — i.e., by the same or different wives, — whether born 
 in the intestate's lifetime or within a year after his death, 
 
 (c) Tlie division of an estate per 
 capita is a mode originally un- 
 known to the law of England ; it 
 comes from the Roman Civil Law. 
 Our own Common Law knows no 
 other method of division, but that 
 per stirpes. 
 
 (d) A posthumous child of the 
 half-blood is entitled equally with 
 
 a posthumous child of the whole 
 blood. Illegitimate children, how- 
 ever, do not share, because a bas- 
 tard, being in legal contemplation 
 nullius fXius, cannot therefore be 
 the intestate's lawfiil child so as to 
 , share his property. As to what 
 children are held by our law to be 
 illegitimate, see anie, p. 75, note. 
 
THE DISTRIBUTION OF AK INTESTATE'S ESTATE. 755 
 
 are entitled to share his property equally, that is, either 
 two-thirds or the whole, according to whether or not their 
 mother survives their father, also without any considera- 
 tion as to religious views or belief; lastly, if the intestate 
 die a widower and leave one child, that child takes the 
 whole of his personal estate. All these points are well- 
 established by very old authorities which it is not thought 
 necessary to cite here, but which may be found in the 
 works mentioned below (e). 
 
 We have seen the distinction which exists between The doctrines 
 taking a share or shares of an intestate's personal estate and^rs^rpes 
 per capita and per stirpes, where the takers are the lineal wjy ^ . 
 
 , , » , . , well to distri- 
 
 descendants of the intestate, and now we may state that bution amongst 
 the same doctrines are applicable where the persons <=''''**®'^f'^^. *^ 
 
 ^^ J^ amongst linea] 
 
 sharing are those of the intestate's next-of-kin (/), or descendants, 
 his collateral blood relations. Thus, supposing A., who Illustratire 
 has neither father, mother, wife, nor children, to die 
 intestate, leaving two brothers, B. and C, and a sister, 
 C, these persons would — even if the intestate had left 
 a grandfather or gi-andmother {g) — share his property 
 per capita, that is to say, they would each take a third 
 in their own right. But if B. had died before A. leav- 
 ing two children, and D. had also predeceased him 
 leaving three children, in this case, C. would take one- 
 third per capita, while the children of B. would take B.'s 
 third between them, and C.'s children would share her 
 
 (e) Toller, Exors. passim ; 2 "Wma. brothers and sisters, or brother, or 
 
 Exors. pt. 3, bk. 4, ch. 1, § 3, brother and sister ; Evelyn v. 
 
 1495, etseq. Evelyn, 3 Atk. 762, S. C. Amb. 
 
 (/) The reader will remember 19], cited 2 Wms. Exors. pt. 3, 
 that "the next of kindred . . . are bk. 4, ch. 1, § 3, 1509. The reason 
 to be investigated by the same rules is that, before the statute, the 
 of consanguinity as those are en- brother was preferred to the grand- 
 titled to letters of administration," father, and it will be remembered 
 2 Black. Comm. 515, ani see ante, that the statute in speaking of 
 p. 708 ; also 2 Wms. Exors. pt. 3, rights under its provisions uses the 
 bTi. 4, ch. 1, § 4, 1505. expression pro suo cuique jure. 
 
 (g) Grandparents of an intestate Ante, pp. 700, 749. 
 are excluded from sharing with his 
 
 3 2 
 
756 
 
 WILLS OF PERSONAL PROPERTY. 
 
 No representa- 
 tion admitted 
 amongst colla- 
 t«rals after 
 children of 
 brothers and 
 sisters of the 
 intestate. 
 
 PttCs case, 
 explanatory of 
 the foregoing 
 quotation. 
 
 The intestate 
 is the subject 
 of the Statute 
 of Distribu- 
 tions. 
 
 third between them — as the representatives of their 
 deceased parents, that is peT stirpes. 
 
 By section 4 of the Statute of Distributions, 22 & 
 23 Car. II. c. 10 Qi), it is provided that " there he noe repre- 
 sentations admitted among collateralls after brothers' 
 and sisters' children, and in case there be noe wife then 
 all the said estate to be distributed equally to and 
 amongst the children, and in case there be noe childe then 
 to the next of kindred in equall degree of, or unto the 
 intestate and their legall representatives as aforesaid and 
 in noe other manner." 
 
 Concerning this provision, it was decided as far back as 
 the year 1700, in Pett's case {i), that the words which we 
 have italicized in the above clause of the Statute of Dis- 
 tributions, mean that no persons, beyond the children of 
 an intestate's brothers or sisters shall, by representation 
 merely, take a distributive share of his property. Holt, 
 C. J., when deciding the above case, thus explained the 
 provision referred to : — " Sir Walter Walker, a famous 
 civilian, drew this Act for distribution ; and the only 
 question now before us upon it is, whether the words 
 ' brothers' and sisters' children ' in the proviso, shall 
 not be intended brothers' and sisters' children of the 
 intestate ? Now surely they ought to be so taken ; for 
 the intestate is the subject matter of this Act ; it is his 
 estate, his wife, his next-of-kin, his children, and conse- 
 quently his brothers' [or sisters'] children that the statute 
 speaks of; so that the relative terms made use of through- 
 out, have the intestate for their correlative. The intent 
 of the proviso was to confine the degrees of representation, 
 that they should not go beyond brothers' and sisters' chil- 
 dren '' (i). In other words, the only collaterals that can 
 claim by representation in this case, are the intestate's 
 nephews and nieces, and they, as we have seen, take per 
 capita, or per stirpes [k), according to circumstances. 
 
 (Ji) In the revised statutes, vol.i. 
 p. 768. 
 
 (t) 1 P. Wms. 25. 
 
 (k) In the case of an intestate's 
 
THE DISTRIBUTION OF AN INTESTATE'S ESTATE. 757 
 
 And to put the matter geaerally, no collaterals in any ^° representa- 
 
 1 1 T 1 1 • 1 ^ n • -1 tioii among 
 
 degree beyond the third from the intestate — computing by coUaterais 
 the rules of the Civil Law (J)— can claim by right of ^^t?°f'\ ^^^ 
 
 ^ ■' _ . o third degree 
 
 representation, but if entitled to share his property at all, of relationship 
 they must take per capita in their own right, as next-of- intestate. 
 kin, and not per stirpes. Thus, supposing that an intestate claims of 
 dies leaving no relations, except a grandnephew and a ^andnephews, 
 grand niece, his property would be devisable between these 
 two persons equally as his next-of-kin, and they would take 
 it in their own right as such. If, however, the intestate Intestate 
 had also left a great-grandson, he would have taken the OTeat'^andLn. 
 whole, by virtue of the section of the Statute of Distribu- 
 tions just mentioned, and also because the rule is that so All lineal 
 long as there are lineal representatives of the intestate, preferred" to 
 however remotely placed, they will be preferred to col- collateral 
 laterals, however near. In other words, not until the 
 lineal descendants of an intestate are exhausted can his 
 collateral next-of-kin take, and even then, not if they are 
 beyond the third degree of kindred to the intestate, unless 
 they can do so in their own right as next of blood, stand- 
 ing in equal degree to the intestate. 
 
 With regard to ascendants, they are generally preferred Ascendants 
 to collaterals in the Civil Law, but as we have seen, where cofl^erais^in 
 the contest lies between the brother and the grandfather *^^ Civil Law, 
 of an intestate, the brother will be preferred to the grand- in ours, 
 father, since the next-of-kin, though collateral, is preferred 
 to an ascendant in a more remote degree (m). 
 
 Nearer relations in the ascending line are of course a Father and 
 person's father and mother, but the rights of each in 
 regard to property of a child who dies intestate have not 
 been identical since the Statute 1 James II. c. 17, s. 7, 
 
 mother teing entitled along witli Masoall, p. 78. 
 the children of deceased brothers (?) Aide, p. 700. 
 and sisters, the child or children of (m) Blachborough v. Davis, 1 P. 
 a deceased brother or sister take Wms. 51. From the intestate to 
 the same share which the parent if his grandfather there are two de- 
 living would have been entitled to or grees, while from the intestate to 
 would have taken, and this is termed his brother there is only one ; con- 
 " taking quasi by representation." sequently the brother is preferred. 
 
 mother of 
 intestate. 
 
758 
 
 WILLS OF PEKSONAL PROPERTY. 
 
 (1685) {n). Thus, if A. predeceases his parents, leaving 
 no wife or child, the father of A. -will be entitled to the 
 Father's right, wholc of his property, to the exclusion of A.'s brothers and 
 Mother's right, sisters, if there be any. But if A. had left a mother and 
 brothers and sisters, then she and they would have shared 
 A.'s property equally amongst them. This is the effect 
 of the statute just cited, which destroyed the equality 
 which the mother formerly enjoyed with the father of an 
 intestate as to taking the whole of his property in the 
 event of his dying intestate without wife and children. 
 Again, if any, or all, of the brothers or sisters mentioned, 
 have died leaving children, these latter are, under the Act 
 of James II., able to take as the representatives of their 
 deceased parents equally with the mother (o). 
 
 The general principles which we have endeavoured to 
 enunciate in the foregoing remarks may, when once under- 
 stood, be readily applied to the solution of those problems 
 arising under intestacies concerning the legal distribution 
 of the deceased's property. In order, however, that these 
 principles may be the better understood, we will place be- 
 fore the reader a very logical classification made some years 
 since by a learned author, from whose work on the present 
 subject we have already made one or two extracts (p). 
 Previous class The principle of the classification referred to is that a 
 
 of claimants . , . , , , • , i r. 
 
 must be previous class 01 persons must be extmct before resort can 
 
 1 Jac. 
 s. 7. 
 
 2, 0. 17, 
 
 How 1 Jac. 2, 
 c. 17, s. 7, is 
 to he cout 
 strued. 
 
 (n) " If after the death of a 
 father, any of his children shall die 
 intestate without wife or chUdreu 
 in the lifetime of tlie mother, every 
 brother and sister, and the repre- 
 sentatives of them, shall have an 
 equal share with her." 
 
 (o) This of course means that she 
 takes an equal share "with them," 
 though not with "each of them,'' 
 The literal construction of this part 
 of Act would produce the following 
 .singular result. Suppose A. to die 
 leaving a mother, two brothers, B. 
 
 and C, and L. and M., children 
 of a deceased sister, his estate 
 must apparently be divided into 
 five parts, for the statute says the 
 representatives shall share equally 
 with the mother. But it really 
 means that the estate will be divided 
 into four parts, one for the mother, 
 one each for the brothers, and the 
 foui-th for L. and M. per stirpes, or as 
 we observed before quasi per stirpes, 
 (p) Mascall's Digest of the Law 
 of Distribution of Personal Estates 
 of Intestates, 8vo. pp. 108 (1818). 
 
THE DISTRIBUTION OF AN INTESTATE's ESTATE. 759 
 
 * 
 
 be had to those in that which succeeds, for one or more exhausted 
 
 persons forming a previous class, will exclude those com- q^ent cia«r" 
 
 prised in that which is subsequent thereto. These classes oan be resorted 
 are as follows : — 
 
 1. A husband. ClaBsifioation 
 
 2. A descendant or descendants ; with or without a °^ claimants. 
 
 widow of the intestate. 
 
 3. A father ; with or without a widow of the intestate. 
 
 4. A mother, brother, sister ; the children of deceased 
 
 brothers and sisters claiming either by representa- 
 tion along with a living brother or sister, or claiming 
 quasi by representation along with the intestate's 
 mother; with or without a widow of the intestate. 
 
 5. Grandfathers, or, if they be dead, grandmothers ; with 
 
 or without a widow pf the intestate. 
 
 6. Ascendants and collaterals in the third degree, in- 
 
 cluding nephews and nieces claiming in their own 
 right [that is, where there is neither a brother nor a 
 sister of the intestate to give them a claim by repre- 
 sentation, nor a mother of the intestate to entitle 
 them to claim quasi by representation], with or 
 without a widow of the intestate. 
 
 7. Ascendants and collaterals in the fourth degree ; with 
 
 or without a widow of the intestate. 
 
 8. The next-of-kin (that is the nearest of consanguinity) 
 
 in whatever degree they may be found; with or 
 without a widow of the intestate. 
 
 9. The king, with or without a widow of the intes- 
 
 tate (q). 
 From what has now been said concerning the distribu- 
 tion of the personal estate of an intestate, where no ques- 
 tions as to settlement, advancement, or portions arise, it 
 will not be difficult to construct a table to show how, in 
 many out of the innumerable combinations of claimants 
 
 (g) See ante, p. 713, and for fui- cemed, Coote, 7th ed. 116 ; G. 
 ther information as to the practice Browne's Proh. Praot. 176. 
 in oases where the Crown is con- 
 
760 
 
 WILLS Of PERSONAL PEOPEETY. 
 
 Table illus- 
 trating the 
 rights of 
 parties 
 
 separately and 
 in combination 
 under the 
 Statute of 
 Distributions. 
 
 which may be made, the rights of parties claiming a 
 share of an intestate's property by virtue of the Statute 
 of Distributions are to be determined. 
 
 In Mr. James Stewart's edition of Blackstone's Com- 
 mentaries there is a table of the kind mentioned (r), and 
 which, on account of its fulness and accuracy, we venture 
 to transfer into this book for the assistance of the reader. 
 
 If the intestate dies leaving : — ■ 
 Wife and cHld, or children . 
 
 Wife only . 
 
 No ■wife or child 
 
 Child, children or representatives 
 of them. 
 
 Children by two wives 
 
 If no child, children or represen- 
 tatives of them. 
 
 A child, and a child of a de- 
 ceased chUd. 
 
 Husband 
 
 Father and brother or sister 
 
 Mother and brother or sister 
 
 Wife, mother, brother, sisters, 
 and nieces. 
 
 Wife, father, brother, sister, and 
 nieces. 
 
 Wife, mother, nephews, and , 
 nieces. 
 
 His personal representatives 
 take as follows : — 
 
 One-third to wife, rest to 
 child or children ; and if the 
 children are dead, then to their 
 representatives (that is, their 
 lineal descendants), except such 
 child or children, not heirs-at- 
 law, who had estate by settle- 
 ment of intestate in his lifetime, 
 equal to other shares. 
 
 Half to wife, rest to next-of- 
 kin in equal degrees to intestate, 
 or their legal representatives. 
 
 All to next-of-kin and to their 
 legal representatives. 
 
 AU to him, her or them. 
 
 Equally to all. 
 
 AU to next-of-kin in equal 
 degree to the intestate. 
 
 Half to each, the latter taking 
 per stirpes. 
 
 Whole to him. 
 
 Whole to father. 
 
 Whole to them equally. 
 
 Half to wife, residue to the 
 others. 
 
 Half to wife and half to father. 
 
 Two-fourths to wife, one-fourth 
 to mother, and one-fourth to 
 nephews and nieces. 
 
 {r) Vol. ii. p. 670 (1854). 
 
THE DISTRIBUTION OF AX INTESTATES ESTATE. 
 
 761 
 
 If the intestate dies leaving : — 
 
 Wife, brothers or sisters, and 
 mother. 
 
 Mother only 
 
 Wife and mother 
 
 Brother or sister of whole blood, 
 and brother or sister of the 
 half-blood. 
 
 Posthumous brother or sister 
 and mother. 
 
 Posthumous brother or sister, 
 and brother or sisters born in 
 father's lifetime. 
 
 Father's father, and mother's 
 mother. 
 
 Father's mother and mother's 
 father. 
 
 Uncle or aunt's children, and 
 brother's or sister's grand- 
 children. 
 
 Grandmother, uncle, or aunt . 
 
 Two aunts, nephew, and niece . 
 
 Uncle and deceased uncle's child 
 
 Uncle by mother's side, and de- 
 ceased uncle or aunt's child. 
 
 Nephew by brother, and nephew 
 by half-sister. 
 
 Brother or sister's nephews or 
 nieces. 
 
 Nephew by deceased brother, 
 and nephews and nieces by 
 deceased sister. 
 
 No children but grandchildren 
 and great-grandchildren 
 
 His personal representatives 
 take as foUows : — 
 
 Half to wife (under the Statute 
 of Distributions of Charles II.), 
 half to brothers or sisters, and 
 mother. 
 
 The whole to her, for in this 
 case the statute, 1 Jac. 2, o. 17, 
 does not apply. 
 
 The whole to them equally. 
 
 Equally to both. 
 
 Equally to both. 
 Equally to both. 
 
 Equally to both. 
 Equally to both. 
 Equally to both. 
 
 All to grandmother. 
 Equally to all. 
 All to uncle. 
 All to uncle. 
 
 Equally per capita. 
 
 Where nephews and nieces 
 taking per stirpes and not per 
 capita. (See par. 4 in the Classi- 
 fication at p. 759, ante.) 
 
 Each in equal shares per 
 capita only. 
 
 A moiety to each class, per 
 stirpes (s). 
 
 (s) i2e Moss's Trusts, L. E. 13 Eq. 286 ; 41 L. J. Ch. 130. 
 
782 
 
 WILLS OF PERSONAL PROPKRTY. 
 
 If the intestate dies leaving : — 
 
 Brother and grandfather . 
 Brother's grandson, and brother 
 
 or sister's daughter. 
 Brother and two aunts 
 Brother and wife 
 Brother and mother . 
 Wife, mother, and children of a 
 
 deceased brother or sister. 
 
 Wife, brother, or sister, and 
 children of a deceased brother 
 or sister. 
 
 Brother or sister, and children 
 of a deceased brother or sister. 
 
 His personal representatives 
 take as follows : — 
 
 Whole to brother (t). 
 Whole to daughter. 
 
 Whole to brother. 
 
 Each a moiety. 
 
 Each a moiety (t). 
 
 Two-fourths to wife, one- 
 fourth to mother, and a fourth 
 per stirpes to deceased brother 
 or sister's children (*). 
 
 Two-fourths to wife, one- 
 fourth to brother or sister per 
 capita, and one-fourth to chil- 
 dren of deceased brother or 
 sister, per stirpes. 
 
 One-half to brother or sister 
 per capita, half to children of 
 deceased brother or sister per 
 stirpes. 
 
 No administra- 
 tion of an 
 intestate's 
 effects before 
 the expiration 
 of a year from 
 his death j 
 
 but the parties 
 entitled to 
 participate 
 have rested 
 interests in 
 the property. 
 
 By section 5 of the 22 & 23 Car. II. c. 10, it is provided 
 on behalf of creditors, that no " distribution of the goods 
 of any person dying intestate be made till [after] one year 
 be fully expired after the intestate's death." But although 
 the power to take any share of the property is thus to be 
 deferred, yet the right thereto accrues immediately after 
 the death of the intestate : in other words, a person en- 
 titled to participate at all in the intestate's effects, has a 
 vested interest (u) in the share falling to him, but which, 
 however, he cannot receive, before the space of one year 
 
 (t) Evelyn v. Evelyn, 3 Atk. 762 ; 
 Keylway v. Keylway, 2 P. Wms. 
 344 ; 1 Stra. 710 ; Stanley v. Stam- 
 ley, 1 Atk. 458. 
 
 (u) This means an interest not 
 contingent; it is an immediate 
 fixed right of future enjoyment. 
 At the intestate's death the interest 
 
 is vested ; after the expiration of a 
 year from the event, that interest is 
 vested in possession, and the whole 
 theory of a vested interest is weU 
 indicated by the expression — debi' 
 turn inprcesentisolvendv/m infuturo. 
 See anie, p. 479 et seq. ; also Edwmrds 
 V. Freeman, 2 P. Wms. 441. 
 
THE DISTRIBUTION OF AN INTESTATES ESTATE. 763 
 
 has elapsed from tlie intestate's death. Such being the Therefore 
 case, if A. dies without a Will of any kind, and B. is his representatives 
 sole next-of-kin, we see that B. cannot secure the abso- of participators 
 
 . . will be entitled 
 
 lute possession of the estate for a year. In the meantime, undera bequest 
 he — and of course any other person entitled to a distribu- tj^e^atter be- 
 tive share of the effects — can make a Will bequeathing queath them or 
 his interest in A.'s property, and this, subject only to the 
 payment of A.'s debts, B.'s legatee will be entitled to, 
 should A. die before the expiration of the period provided 
 by the Statute of Distributions. And the representatives 
 of a person entitled to participate will also be entitled to 
 his share in the event of his dying intestate before dis- 
 tribution has taken place. 
 
 The Statute of Distributions next proceeds to declare Persons 
 that, "every one to whom any distribution and share j?*^*??'^™ 
 
 ' -I _ -'_ _ distribution 
 
 shall be allotted shall give bond with sufficient sureties . . , must give bond 
 that if any debt or debts truly owing by the intestate tratora tT 
 shall be afterwards sued for and recovered, or otherwise refund in case 
 duly made to appear, that then and in every such case he appear after 
 or she shall respectively refund and pay back to the distribution is 
 administrator his or her rateable part of that debt or 
 debts, and of the costs of suit and charges of the adminis- 
 trator by reason of such debt, out of the part and share so 
 as aforesaid allotted to him or her, thereby to enable the 
 said administrator to pay and satisfy the said debt or 
 debts so discovered after the distribution made as 
 aforesaid (a;). 
 
 The heir-at-law of an intestate, "notwithstanding any The heir-at- 
 land that he shall have by descent, or otherwise, from the intestate 
 intestate, is to have an equal part in the distribution with entitled to 
 
 participate in 
 his personalty, 
 (a) As to the rights of creditors jni^e stated In the goods of Braci:en- 
 to take a grant of administration, btiri/ (L. J., N. 0. June 16, 1877), 
 see ante, p. 710, Coote, 111 et seq. that for tlie future in the case of all 
 (7th ed.); G. Browne, 178 et seq. creditors' grants, the party taking 
 A very important point of practice the grant will be obliged to give 
 has just been settled by Sir J. bond to distribute the estate pro 
 Hannen with regard to a creditor rata. 
 administrator's duties. The learned 
 
764 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Where 
 children are 
 provided for 
 by settlement 
 or advanced by 
 portion by 
 intestate 
 father in his 
 lifetime. 
 
 Hotchpot. 
 
 the rest of the children, without any consideration of the 
 value of the land which he hath by descent, or otherwise, 
 from the intestate." 
 
 We have hitherto been considering the position of chil- 
 dren whose right to share their father's (y) property by 
 virtue of the Statute of Distributions is not affected by 
 settlement or advancement in their favour made by him 
 in his lifetime. As to those children who have estates 
 by settlement from the intestate, or been advanced by hirr^ 
 in his lifetime, the statute says that : — " in case any child, 
 other than the heir-at-law, who shall have any estate by 
 settlement from the said intestate, or shall be advanced by 
 the said intestate in his lifetime by portion not equal to the 
 share (0) which will be due to the other children by such 
 distribution as aforesaid, then so much of the surplusage 
 of. the estate of such intestate [is] to be distributed to 
 such child or children as shall have any land by settlement 
 from the intestate, or were advanced in the lifetime of 
 the intestate as shall make the estate of all the said 
 children to be equal as near as can be estimated." 
 
 The arrangement here indicated, and which is intended 
 to equalize the shares to be taken by the intestate's 
 children, is known in our law by the homely name of 
 Hotchpot, a term synonymous with "hodge-podge," or 
 pudding made up of various ingredients, and which we 
 are told {a) corresponds with the Latin farrago or miscel- 
 lanea, and apparently with the Spanish olla-podrida. 
 
 (y) The provision of the statute 
 as to advancement byportion applies 
 only to intestate fathers, 2 "Wms. 
 Exors. pt. 3, bk. 4, ch. 1, § 3, 1499. 
 A mother cannot advance her child 
 in the full sense of this term as used 
 in the Act. This does not mean, 
 however, that in other cases a 
 mother cannot advance her child. 
 See JBaistane v. Salter, L. R. 19 Eq. 
 250 ; 44 L. J. Ch. 209 ; affirmed 
 L. R. 10 Ch. 431 : 44 L. J. Ch. 760. 
 
 The somewhat singular distinction 
 above mentioned, and which one 
 might almost say has been forced 
 into the statute, will be referred to 
 again post, 
 
 (z) That is to say, partially ad- 
 vanced. 
 
 {a) Co. Litt. 177a. Sotchpot 
 may be said to be a term of the 
 Common Law analogous to that of 
 collatio honorum of the Civil Law. 
 Dig. 37, 6, 1 ; 2 Black. Coram. 517. 
 
THE DISTRIBUTION OF AK INTESTATE'S ESTATE. 765 
 
 The idea intended to be conveyed obviously is, that just as 
 a pudding is a commixture of various articles .constitut- 
 ing a divisible mass, so, to put (6), or as we ordinarily say, 
 bring into hotchpot, means that a child or children throw 
 into the general bulk of the property to be divided the 
 amount of an advancement or advancements made to him, 
 her, or them, who afterwards participate equally with 
 other children not advanced, in the whole common fund 
 thus formed (c). 
 
 From the terms of the statute just quoted, we see that Bringing into 
 a child, no matter what may have been the extent of his optional not 
 advancement, is not compelled to account for it, at all compulsory, 
 events, but only when he desires to share in his intestate 
 father's property. If, therefore, A. in his lifetime has whatever may 
 given his son B. £10,000, and dies intestate leaving several ^^7^ ^'^^f ^^^ 
 
 ^ extent) 01 3i 
 
 other children and personalty of the value of only £1000, oMld's 
 B. cannot be called upon to bring his £10,000 into hotchpot ty^-^^fSr, 
 so as to give the other children a more equal share of their tl>e intestate. 
 father's property (cZ). 
 
 It is now necessary to explain what is meant in law by Meaning of 
 the term " advancement," and in the first place we must lff7"'"'!'„ 
 
 ' ^ ment as a 
 
 remember that, when used in connection with the Statute term of law. 
 
 of Distributions, it is a provision made by a father (e) in ^* ™"^* ^® 
 
 his lifetime, on behalf of a child. A legacy, therefore, or secured in 
 
 any other provision made by Will is not an advancement, ^^^^ ^ ^^^^' 
 
 because such "legacy is not a provision secured by the a legacy is 
 
 parent in his lifetime" (/). In the next place, the gift to °°*' 'licrefore, 
 
 _ , . dill 3.civ3jiice"" 
 
 the child must be complete, in other words, the father ment. 
 must, to make his gift an advancement, entirely divest cfift to be sucii 
 himself of all property in the subject of it, for though the ™"?' °°' ^^ , 
 
 '■'■•' •> o under control 
 
 (6) Mitten in confvMim or mitter Vila, 2 Black. Comm. 616, 517. 
 
 «mAoicApo< will represent this phrase (d) The learning on this subject 
 
 in law Latin and French, respec- is set forth in the judgt. of Lord 
 
 tively. Raymond, C. J. Edwards v. Free- 
 
 (e) This equalization formed by man, 2 P. Wms. 441, an authori- 
 
 the doctrine of hotchpot may under tative case at the present day. 
 
 the terms of a Will affect realty as (e; See n. {y), supra. 
 
 well as personalty. See Co. Litt. (/) Per Lord Raymond, C. J., in 
 
 by Hargi-eave and Bntler, 1766., Edwwrds^. Freeman. 
 
 of father. 
 
766 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Gift secured 
 only in father's 
 lifetime may 
 be an advance- 
 ment. 
 Mode of 
 securing it 
 immaterial. 
 
 Contingent 
 provision may 
 be within the 
 Statute of 
 Distributions, 
 
 Father not 
 divesting 
 himself of the 
 property makes 
 his son a 
 trustee for 
 him. 
 
 Illustrative 
 ca£e. 
 
 Advancement 
 may be pm-tial 
 
 portion be not paid in the father's lifetime, yet if it be 
 secured during his lifetime, so that it shall be certainly 
 payable at any future time, then in such case there will be 
 an advancement {g). The mode of securing the payment 
 is quite immaterial {g), and a contingent provision, when 
 the contingency has happened, is a provision within the 
 Statute of Distributions {g). 
 
 When a father intends to advance his child — in the 
 legal sense of that term — he must, as before observed, 
 cease to have or exercise any control whatever over the 
 gift which he bestows. For if, after doing this, he still 
 assumes the powers of ownership over it, then the 'prima 
 facie presumption which arises in such cases to advance- 
 ment is rebuttable, and the son stands in the place of a 
 trustee for his father Qi). 
 
 Thus, where a, father purchased property in his son's 
 name, but dealt with it as owner, Wickens, V.-C, held the 
 presumption that an advancement had been intended was 
 rebutted, and instead of an advancement, the father had 
 created a trust (i). 
 
 An advancement may be either partial or complete. It 
 is partial, when the amount is less than the share which 
 the child advanced would have been entitled to on his 
 father's dying intestate, had he not received such advance- 
 ment in his father's lifetime. When the amount of the 
 
 {g) Edwards v. Freeman, ante, 
 n. (d). 
 
 {hj This is an instance of a con- 
 structive trust, which is in this case 
 termed a resulting tmst, or one 
 raised by implication, or the con- 
 struction of equity, for the benefit 
 of a person gi'anting an estate or 
 making a gift. See Dyer v. Dyer, 
 and Achroyd v. Smithson, with the 
 notes thereto, 1 L. C. Eq. 203, 872. 
 
 (i) Stock v. M'Amy, L. E. 15 Eq. 
 55 ; 42 L. J. Ch. 230. " Where a 
 father buys in a son's name, the 
 presumption is that a gift or ad- 
 
 vancement is intended, but if the 
 son is proved to be a trustee at all, 
 he is a trustee altogether, according 
 to Dumper v. Dumper, 3 Giif. 583." 
 See also Hcpworth v. Hepworth, 
 where a father transferred stock into 
 the name of a son who was already 
 fully advanced, and the Court held 
 the presumption of advancement 
 raised by the transfer not rebutted 
 by the circumstance of the previous 
 advancement, and also by the Will 
 of the testator manifesting an inten- 
 tion to provide for the son's children ; 
 L. E. 11 Eq. 10; 40 L. J. Ch. 111. 
 
THE DISTRIBUTION OF AN INTESTATE's ESTATE. 767 
 
 gift and the child's distributive portion of his intestate 
 father's effects are identical, the advancement is complete. 
 
 Having considered the word " advancement," simply as What sort of 
 a legal term, and having seen how the law regards an foanTdvance- 
 advancement when it has been made, the question which m™t in law. 
 now presents itself for our consideration is this : — What 
 sort of gift or provision made by a father in his lifetime 
 to or for his child is, or will constitute, in legal contem- 
 plation, an advancement ? 
 
 We are fortunate enough to have a iudgment on The case of 
 this subject — delivered by the present Master of the Rolls Taylor ^ 
 in a most useful case decided in May, 1875 (7), which e'^piamsthe 
 
 meaning of 
 
 will enable us to present a very satisfactory answer to the -what an 
 question just propounded. The facts in this case (j) were ftseu'is"'^"' 
 these : — J. T., a widower, died in 1856 wholly intestate, 
 leaving the plaintiff and the defendant, his sons, his only 
 next-of-kin (k). The defendant administered the estate and 
 had, as he thought, finally settled all accounts in 1858; but 
 in 1871 the plaintiff filed a bill against the defendant for 
 administration and accounts and other relief. By a decree 
 made in 1873, the ordinary inquiries and accounts were 
 directed, and especially an inquiry whether the intestate 
 in his lifetime, gave, advanced, or settled to, or for, or 
 upon any, or which of his children, any sum or sums of 
 money, and if so, what was the amount of value thereof ; 
 and an inquiry whether anything was then due from the 
 defendant to the plaintiff in the matters aforesaid. The 
 Chief Clerk found that the intestate had given, advanced 
 or settled money or property to or on the plaintiff to the 
 amount of nearly £5000, consisting, amongst others, of the 
 following items : — 
 
 (a) Sums of money given to the plaintiff before his Nature of gifts 
 marriage, and an annual allowance of £200 after father to*^hia 
 his marriage ; son— the 
 
 plaintiff. 
 
 ij) Taylor v. Taylor, L. R. 20 Ect. (k) See ante, p. 751, and n. (s), 
 
 155 ; 44 L. J. Ch. 718. ibid. 
 
768 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Gifts to the 
 defendant. 
 
 Questions for 
 the Court in 
 Taylor v. 
 Taylor. 
 
 (b) One hundred guineas, the fee payable on his enter- 
 
 ing the chambers of a special pleader ; 
 
 (c) £1.33 8s. on admission to membership of the Middle 
 
 Temple ; 
 
 (d) £32 7s. 4d for dues payable to that Inn of Court ; 
 
 (e) £450, the price of a commission in the army pur- 
 
 chased for the plaintiff; 
 (/) £350 for cost of outfit for plaintiff and his wife, 
 
 and the payment of their passage to India ; 
 ig) Several sums paid by the intestate to discharge the 
 plaintiff's debts in India, and but for the payment 
 of which, according to the evidence, he must have 
 left the army ; 
 (h) Three sums, amounting to £845, advanced to the 
 plaintiff after his return from India to enable him 
 to carry on some mining operations. 
 As to the defendant, the Chief Clerk found that the 
 intestate had given, advanced, or settled to, or upon him, 
 £10,410 8s. 2d., of which £6887 9s. was made up of vary- 
 ing annual allowances given to the defendant before his 
 marriage and an annual allowance of £200 a year after- 
 wards. On the footing of the above accounts, the Chief 
 Clerk found that there was due to the plaintiff from the 
 defendant the sum of £2255 6s. lid., against which the 
 defendant claimed to set off £3688 10s. 5d., and which 
 was for sums advanced by him for the plaintiff's support 
 since the intestate's death. 
 
 On the cause coming on for hearing on further con- 
 sideration — two summonses to vary the Chief Clerk's certi- 
 ficate having been taken out by the parties respectively — 
 two points arose for the decision of the Court : — 
 
 1st. Whether the above items, charged to the plaintiff 
 and defendant respectively, were advancements 
 within section 5 of the Statute of Distributions, 
 22 & 23 Car. II. cap. 10 ; 
 2nd. Whether the defendant was entitled to set off the 
 plaintiff's personal debt to him, against his debt 
 
THE DISTRFBUTION OF AN INTESTATE'S ESTATE. 769 
 
 dae to the plaintiff, as administrator of the 
 intestate's property. 
 The first point, however, raised in argument was this : Judgment in 
 — Were the annual allowances to the defendant sufficient 
 to constitute an " advancement " to him within the Statute 
 of Distributions ? 
 
 In answer to this. Sir George Jessel, M. R., said : — Opinion of Sir 
 " .... I have always understood that an advancement, ^- •'.^f ^' ^ *° 
 
 •'_ _ ' wnat IS meant 
 
 by way of portion (I) is something given by the parent to by "advanc- 
 
 establish a child in life, or to make what is called a pro- '"sac 
 
 vision for him, iiot a mere casual provision for him — not 
 
 a mere casual payment of this kind. I agree, you may 
 
 make provision by marriage portion on the marriage of -^yij^t ^^^ of 
 
 the child ; you may make it on putting him into a pro- gifts are 
 
 ... , . . ■ , r n portions or 
 
 lession or business m a variety oi ways ; you may pay tor provisions for 
 a commission ; you may buy him the good-will of a busi- * ''^^'*- 
 ness, or give him a stock-in-'trade ; all those things I 
 understand ; they are portions or provisions. I also agree 
 that if, in the absence of evidence (m), you find a father 
 giving a large sum to a child in one payment, there is a Gift of a large 
 presumption that that is intended to start him in life and |"^g ^j^;^*! ^' 
 make a provision for him, and if there is a small sum Smail sum. 
 you require evidence to show the purpose (n). 
 
 But I do not agree, that the words of the statute " by 
 portion," are to be disregarded ; nor do I agree that the 
 word " advancement " is to be disregarded. It is not every All payments 
 payment you make to the child which is to be regarded g^iW are not 
 as an advancement. It must be advanced by way of portions. 
 
 (Z) As to what is a " portion '' but possessed of £2000 in tbe funds, 
 
 see ante, p. 51. has a son wlio is desirous of entering, 
 
 (to) As to evidence in cases of against his- father's wishes, some ex- 
 advancement, see the notes Dyer v. pensive profession in . which his 
 Lyer, 1 L. C. Eq. 223, 4th ed. prospect of success would be very 
 
 (n) Probably much would also uncertain. He induces his father 
 
 depend on the position of the father to expend £1000 upon his training 
 
 in life and other circumstances. for the profession in question, and 
 
 Take e.g. the following case : — A then fails to succeed. Would this 
 
 clerk in a merchant's office with a be an; advancement to the son ? 
 large family and a limited income, 
 
 3 D 
 
770 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Gift must be 
 bestowed as a 
 portion to con- 
 Btitute an 
 advancement 
 "witbin tbe 
 Statute. 
 
 Every payment 
 to or for a 
 child is not a 
 provision, 
 
 and it must be 
 for a special 
 purpose to 
 constitute an 
 advancement. 
 
 The sums 
 given to the 
 defendant held 
 not to be an 
 advancement. 
 
 What sums 
 given to the 
 plaintiff were 
 held to be an 
 advancement. 
 
 Keason of the 
 decision in 
 Taylor v. 
 Taylor. 
 
 •portion. In every case which I have referred to, it has 
 been something of that kind. There has either been the 
 settlement itself, or a purpose which every one would 
 recognize for establishing the child, or making a provision 
 for the child. I see in the case of Edwards v. Freeman (o), 
 the words used by Sir J. Jekyll, M. R., are ' a provision : ' 
 he says it is to be a provision. .... So that the whole 
 judgment goes upon this, that it is to be a provision for 
 a child. Not every payment is a provision for the child ; 
 and I think that is what Vice- Chancellor Wood meant 
 when he said in Boyd v. Boyd (p), that the payment 
 must be made for a particular purpose — he meant with 
 a view to the establishment of the child. Now that 
 certainly was the case as regarded the custom of London (q) ; 
 nobody thought of taking an account of small sums which 
 a father had given to his children whether they were 
 under or over age. I shall in dealing with this case dis- 
 allow as advancement by portion all these items." The 
 sums, then, given to the defendant by his father in his 
 lifetime were held by the learned judge not to have been 
 such provisions for him as to constitute an " advancement," 
 and therefore the defendant was notj in order to share the 
 estate with his brother, bound to bring those sums into 
 hotchpot. 
 
 In dealing with the items charged to the plaintiff, Sir 
 George Jessel, applying to them the principles which he 
 had before so lucidly expounded, allowed the entrance fee 
 to the Middle Temple, the sums paid for the plaintiff's com- 
 mission and outfit, also the aggregate sum of £84.5 paid for 
 his establishment in business. In each of these instances it 
 is seen that the sums allowed by the Court to be reckoned 
 as " advancements" by the intestate to the plaintiff, were 
 
 (o) 2 P. Wms. 435, referred to, M. R. and Price, J. 
 
 arite, pp. 760, 763. This case was (p) L. R. 4 Eq. 305 ; 36 L. J. 
 
 decided by Lord King, C, Lord Ch. 877. 
 
 Raymond, C. J., Sir Joseph Jekyll, (g) See ante, p. 748. 
 
THE DISTRIBUTION OF AN INTESTATK's ESTATE. 771 
 
 given for the' purpose of " setting him up " in three 
 separate callings. In each case there was, therefore, a pro- 
 vision within that portion of the Statute of Distributions 
 which declares that any gift, made as such, shall be accounted 
 for by the recipient thereof before he can share in the estate 
 of his intestate father, from whom he received the gift. 
 
 The other items charged to the plaintiff were on the 
 same principle disallowed; that is to say, they were held not 
 to have been given to advance the plaintiff, but merely as 
 presents. " My notion of advancement by way of portion," " Advance- 
 said Sir George Jessel, " is a sum given either on marriage, S™ortio ™— 
 or to establish the child ; primd facie it is a sum given '^^^^ '* '^• 
 early in life. Yoii may establish a son late in life, but 
 generally speaking this is done early." ' 
 
 A large balance, however, was still due to the plaintiff Whether an 
 after the above allowances and disallowances were made, maysetaff*" 
 accordingly, the next question for the Court was, Could personal debt 
 the defendant, as administrator, set off a personal debt due from him 
 due to him from the plaintiff, as against an administration ^ adminis- 
 debt due from him to the plaintiff ? That question put 
 into general terms amounts to this. Can a personal legal 
 debt be set off against a personal equitable debt ? The 
 Master of the Rolls on the particular point before him 
 said : — " It seems to be clear on every principle of equity, 
 every principle of common sense and common justice, 
 every principle derived by analogy from the statute of set- 
 off (r), or otherwise, that the defendant if he proves his 
 facts, is entitled to the set-off claimed ; and I intend to 
 allow his claim " (s). 
 
 It was argued by counsel for the plaintiff in Taylor v. 
 
 (»•) 2 Geo. II. c. 22, made per- Law Eevision Act, 1867, 30 & 31 
 
 petual by 8 Geo. II. c. 24. The Vict. c. 59. 
 
 real title of the former statute is (s) With Taylor v. Taylor, may 
 
 "An Act for the relief of debtors be read Worthington v. Curtis, L. 
 
 with respect to the imprisonment R. 1 Ch. App. (N. S.) 45 L. J. 
 
 of their persons." It is repealed ex- Ch. 259. Here, a father having 
 
 cept as to the 13th section, which effected a policy of insurance on his 
 
 deals with set-off, by the Statute son's life and in his son's name, paid 
 
 3 D 2 
 
772 WILLS OF PERSONAL PROPERTY. 
 
 Taylor, that an administrator could not set off a personal 
 debt against a debt due from him as administrator, and they 
 cited Middleton v. Pollock {t), in support of their contention. 
 In this casewhich was also decided by the Masterof the Rolls, 
 and only about two months before Taylor v. Taylor, the 
 facts, shortly stated, were these ; — A. died in 1859, leaving 
 the residue of his real and personal estate to his son B., 
 and to C, a stranger, upon trusts, under which in 1873 the 
 said B., and another person, D., became entitled to the 
 income of the property in equal shares. In 1873, C. was 
 abroad, and B. intending to leave the country, gave to P., 
 the solicitor to the trustees, and who for some years had 
 received the rents for them, an authority in writing to meet 
 the wants of the estate with his own cheques. P. died in 
 1873, insolvent, and there was then due from his estate in 
 respect of rents received over £2000. At the time of 
 P.'s death, B. was indebted to P.'s trustees in a sum of 
 nearly £5000, which was secured by a charge on B.'s share 
 under the Will of A. By an indenture dated in 1874, 
 the aforesaid D. assigned to B. all her share of the debt 
 due from P., for the administration of whose estate a 
 suit had been instituted. By an order in the course of 
 this suit dated in 1874, it was directed that, without pre- 
 judice to the right of A. to raise any question of set-off 
 against the debt due from him to the estate of P., he should 
 be at liberty to pay into Court the amount due from him 
 to that estate. This amount having been paid in, A. 
 presented a petition, claiming to be entitled to set off P.'s 
 debt and interest due from P.'s estate to him, and praying 
 that so much of the sum he had paid into Court as would 
 
 all tie premiums, but retained tlie father was entitled to keep it as 
 
 policy in Ms own possession. The against his son's creditors, the 
 
 son having died, the father took father having effected the policy for 
 
 out administration to him, receiving his own benefit, 
 
 the insurance money. The Lords (t) L, R. 20 Eq. 29 ; ii L. J. Ch. 
 
 Justices of Appeal, afiBrming a de- 584. 
 
 cision of V.-C. Bacon, held that the 
 
THE DISTRIBUTIOK OF AN IN'tESTATE's ESTATE. 773 
 
 raise the sum due from P.'s estate might be paid to him. 
 He put in evidence an affidavit showing that he and D. 
 were the beneficial owners of the sum due from P.'s estate, 
 and also an affidavit from himself and C, his co-trustee 
 stating that they had no claim upon it as trustees of the 
 Will of A. Now, it is clear that between the circum- 
 stances in this case and those in Taylor v. Taylor, there 
 is a very marked difference, and the Master of the Rolls, 
 who characterised A.'s petition as a singular one, said : — 
 " However you treat the demand of A. it is the demand of 
 a trustee and executor against the solicitors of the trustees 
 and executors, and it is not a demand of A. in his own 
 right as being beneficial owner of half the residue of the 
 income, after paying the expenses whatever they may be 
 .... It appears here, whether you treat the demand as 
 one of an executor and trustee, or whether you treat it as 
 the demand of a trustee it is not the demand of a 
 beneficial owner, hut is a demand in another right than as 
 beneficial owner . . . ." His lordship then quotes from 
 the judgment of Sir G. Turner [when] V.-C, in Freeman 
 V. Lomas (u), wherein that eminent judge says : — " I 
 believe that, upon examining the authorities, it will be 
 found that, except under special circumstances, Courts of 
 Equity have never allowed cross demands existing in 
 different rights to be set the one against the other." And 
 in the concluding portion of his own decision the Master of 
 the Rolls also quotes the words of Lord Cottenham, C, in 
 Rawson v. Samuel (x) : — " We speak familiarly of equit- 
 able set-off, as distinguished from the set-off at law ; but 
 it will be found that this equitable set-off exists in cases 
 where the party seeking the benefit of it can show some 
 equitable ground for being protected against his adver- 
 sary's demand." Now, in Taylor v. Taylor, the demand 
 was not a claim in autre droit, but in the right of him 
 who made it, namely, the administrator, and he was, more- 
 
 (u) 9 Hare, 109 ; 20 L. J. Ch. (x) Cr. & Ph. 178 ; 10 L. J. Ch. 
 
 564. 214. 
 
774 WILLS OF PERSONAL PEOPERTY. 
 
 over, able to show an extremely equitable ground why he 
 should make it, and why he should be protected against 
 the refusal of the plaintiff to allow him to do so. These 
 two cases are therefore clearly dissimilar, and the ratio 
 decidendi in Middleton v. Pollock cannot be applied to 
 circumstances like those in Taylor v. Taylor. 
 
 Having considered what is held to be the meaning of 
 the expression—" advanced by the intestate in his life- 
 time by portion," which occurs in section 3 of the Statute 
 of Distributions, and having seen that a child so advanced 
 must bring the amount of his advancement into hotchpot 
 before he can further share in his intestate father's estate, 
 we now come to the one other provision of a similar character 
 Provision for in the Statute. This is to the effect that in case a child 
 settlement of — other than the heir-at-law, who shall have any landed 
 't"*^ ""^ ^y estate or charge thereon hy settlement (y), from the intes- 
 tate in his lifetime, such child shall bring the value there- 
 of (z) into hotchpot if he wishes to participate with the 
 other children in the personal effects of his father. 
 Edwards v. The case of Edwards v. Freeman (a), already alluded 
 
 c^e in point. *°> i® °^® ^^^^ ^^^^ assist US here, being directly illustra- 
 tive of the subject, and, moreover, containing statements of 
 the law which are authoritative at the present day. The 
 Facts in that facts, divested of unnecessary matter, were as follows : — 
 R. F., on his marriage with E. K., in 1693, covenanted by 
 articles (6) to settle all his lands to the use of himself for 
 life, and after several remainders, finally to trustees for 
 
 {y) The context of the Act stows make the state of all the said chil- 
 
 tliat the settlement in question is dren to be equal as near as can be 
 
 one of realty not personalty. The estimated. 
 
 words are: — "And in case any («) See Weyland v. Weyland, 2 
 
 child, other than the heir-at-law, Atk. 632, as to bringing into hotch- 
 
 who shall have any estate by settle- pot the value of the provision for 
 
 ment from the intestate . . . then the wife and children of a child's 
 
 so much of the surplusage of the marriage, as well as the provision 
 
 estate of such intestate to be dis- for the child himself, 
 
 tributed to such child or children (a) 2 P. Wms. 435. 
 
 as shall have any laTid by settle- (6) No settlement, however, was 
 
 ment from the intestate as shall made pursuant to these articles. 
 
 case. 
 
THE DISTRIBUTION OP AN INTESTATES ESTATE. 775 
 
 500 years to raise portions for daughters, if but one 
 daughter, £5000, if more, £6000, payable at eighteen, or 
 on marriage, which should first happen, and to raise main- 
 tenance for such daughters till their portions should 
 become payable. One daughter, M., was born of the 
 marriage of R F. and E. K., and shortly after the birth 
 of M. the mother died. 
 
 About three years afterwards, R. F. married A. M., 
 settled great part of the lands comprised in the previous 
 articles — without giving notice respecting them — and had 
 issue T. and W. These two children with their mother 
 were the defendants in the case. In 1710, R F. died 
 intestate, and his widow took out administration to him. 
 M., the first wife's child, who was then eleven years of age, 
 subsequently married the plaintifi", W. Edwards, and they piaintirs 
 then filed a bill in Chancery for their distributive share <='^™- 
 in R. F.'s estate, but without claiming the £5000. 
 
 The defendants answered that, by the articles, M. hav- Defendants' 
 ing a portion of £5000 secured to her by a charge on her ^^^^^r. 
 father's land was not entitled to any share of his personal 
 estate unless she should bring the i£5000 into hotchpot so 
 as to equaKse the shares of aU the children. 
 
 This answer was upheld, all the learned judges who jndgment iu 
 decided the case agreeing that the portion of £5000 was ^*""»'<^ ^■ 
 
 . . Freeman. 
 
 an advancement jiro tanto, and must be brought into 
 hotchpot as to the other issue. Here, we have a future Future and 
 and contingent provision made for a child, and it was contingent 
 objected in argument that as such it was not within the advlnoemait^" 
 Statute of Distributions. Lord Chancellor King, however, ^^ *""*" ^"^^ 
 
 Till- ■ Til contingency 
 
 held that just as contmgent debts due to an intestate are happens, 
 within the statute, as to a distribution, so future contin- 
 gent provisions are to be deemed advancements pro tanto 
 as to children ; provided the contingency named is to take Contingency 
 effect within a reasonable time, as in the case under con- "i"^' '^■^f . 
 sideration, where the ptrtion was payable at the age of a reasonable 
 
 eighteen or on marriage. 
 
 It was also laid down by Sir J. Jekyll, M. E., that 
 
 time. 
 
776 
 
 WILLS OF PERSONAL PROPEKTY. 
 
 Portions 
 secured by 
 settlement 
 of land not 
 payable out of 
 personalty ; 
 
 but must be 
 collated into 
 the personal 
 estate. 
 
 An annuity 
 settled on a 
 child is an 
 advancement 
 to be brought 
 into hotchpot. 
 
 Doctrine of 
 hotchpot, upon 
 "what founded. 
 
 Nothing can be 
 taken awa;/ 
 from a child 
 advanced. 
 
 portions secured by settlement of any kind (d) out of 
 lands are not to be paid out of the personal estate. The 
 sum of £5000 was not a debt due from the intestate, the 
 covenant was to settle lands and to raise a term out of 
 them for securing the amount of M.'s portion. But 
 although this was so, the Court held that the value of the 
 portion ought to be " collated into the personal estate," in 
 order to comply with the intent of the Statute of Distribu- 
 tions which was to render equal as far as possible the shares 
 in his property taken by the children of an intestate father. 
 
 If a contingent provision, when the contingency happens, 
 is an advancement to a child, d fortiori will an annuity 
 settled upon him be so, but if the child pays money for an 
 estate, this is obviously not a settlement (d), and, of 
 course, he would not be compelled to bring such pur- 
 chase into hotchpot, for any property acquired by any 
 other way than by gift from a father (e) is unaffected by 
 the rule of hotchpot, so far as the Statute of Distributions 
 is concerned. 
 
 The doctrine of hotchpot, then, is foxinded upon the 
 maxim that Equality is Equity ; but, as we said before, in 
 no case — except when the donee wishes to share with the 
 other children — is it obligatory upon a person to bring his 
 advancement into hotchpot, nor can anything be taken 
 from him to equalize the shares of other persons entitled 
 to participate in an intestate's personal estate ; also, that 
 unless a gift be clearly an advancement by portion, he 
 may share in the property without being compelled to 
 bring such gift into hotchpot. 
 
 (c) " The words of the Act make 
 no diversity betwixt a voluntary 
 settlement and a marriage settle- 
 ment, they mention settlements in 
 general." Per Lord Raymond, C. J. 
 
 (d) Per Lord Raymond, C. J. , in 
 Edwards v. Freeman. 
 
 (e) In the interesting and im- 
 portant case of Sayre v. Hughes, L. 
 R. 5 Eq. 376 ; 37 L. J. Ch. 401, 
 
 Stuart, V. -C. , laid it down that it is 
 immaterial who makes an advance- 
 ment to a child, if it can be shown 
 from the relationship between the 
 parties that the probable and pre- 
 cise purpose of the gift was to benefit 
 such child. In this case there was 
 an investment of stock by a mother 
 in the joint names of herself and a 
 child. 
 
THE DISTEIBITTION OF AN INTESTATE'S ESTATE. 777 
 
 When once a share of the property which in the event Representa- 
 of a father's intestacy must belong to his child, is fettered advanced 
 by the obligation of taking it subject to the rule of hotch- f^ren must 
 
 •' . . bnng advance- 
 
 pot, such restraint will adhere to the share so as to affect ment into 
 
 the persons in whom it may ultimately vest. Thus, if a ° '^ P° ■ 
 child who has been advanced by an intestate father in his 
 lifetime, die leaving children, who survive their grand- 
 father, before they can share in his property they will have 
 to bring into hotchpot what their father received in part for 
 advancement, as he if living must have done ; for the issue 
 stand in the place and stead of their father, claim under 
 him, and cannot be in a better position than their father, 
 if living would have been and had claimed his distributive 
 share (/). 
 
 Lastly, as to this doctrine of hotchpot or equalization, we The statutory 
 state that the provision in the Statute of Distributions ^ hotchpot 
 concerning it " applies only to the case of actual intestacy ; applies only to 
 
 11,1. . 1 ,1 cases of total 
 
 and where there is an executor and consequently a com- intestacy, 
 plete Will, though the executor may be declared a trustee 
 for the next-of-kin {g), they take as if the residue had 
 been actually given to them. Therefore, a child advanced 
 by his father in his lifetime, or provided for in the Will, 
 cannot be called on to bring his share into hotchpot " (/i). 
 
 It sometimes happens that a testator having given by Where a 
 his Will, real or personal property to certain persons by *?^!**°'' f^*^^ 
 name as tenants in common (-i), afterwards revokes his to tenants in 
 gift as to one of them. The question in such a case is, '^nm^mtim, 
 — What becomes of the share thus revoked ? Does it revokes gift 
 fall into the residuary estate, or does it belong to the 
 heir-at-law, or next-of-kin, according to whether the 
 property is real or personal ? The answer to this question 
 may be found in the judgments of the present Lord 
 Chancellor and the late Lord Komilly, M. R., in the case 
 
 (/) Fer Lord Chancellor King in (A) 2 "Wms. Exors. pt. 3, bk. 4, 
 
 Proud V. Twner, 2 P. "Wms. 560 ch. 1, § 3, 1499. 
 
 (1729). (») See cmte, pp. 517, 687, n. (u). 
 
 {g) See ante, p. 497. 
 
778 
 
 WILLS OF PERSONAL PROPERTY. 
 
 Such testator 
 dies intestate 
 as to the 
 revoked gift. 
 
 cited below {k). The decisions of both noble and learned 
 judges, it may be said, simply follow and terminate a very 
 long line of authorities which show that in the case we 
 have put, the revoked share does not fall again in the 
 testator's residuary estate, but "becomes undisposed of 
 for the heir-at-law, or for the next-of-kin, as the case may 
 be." In other words, if a testator devise real property to 
 A. and B., as tenants in common, and afterwards revoke 
 the gift to A. or B., he dies intestate as to that gift, and 
 the revoked share goes to the testator's heir-at-law ; and 
 if he bequeath £1000 to A. and B., as tenants in common, 
 and afterwards revoke the gift to one of them, then, as to 
 the gift so revoked, he will die intestate, and it will belong 
 to his next-of-kin. 
 
 If, however, the gift be not to persons norrdnatim, but 
 as a class, whether as tenants in common or not (Z), then, 
 by revoking the gift as to one member thereof, the gift 
 remains for the benefit of the others (m). 
 
 Again, if a gift be made to a set of children, or other 
 persons by name, and one of them predeceases the tes- 
 tator, the share intended for the deceased child, &c., will 
 be considered as undisposed of, that is to say, it will 
 belong not to the other tenants in common, but to the 
 testator's next-of-kin {n). 
 
 With the foregoing introduction to the learning on the 
 Statute of Distributions, this treatise ends. 
 
 (Tc) Sylces v. SyUs, L. R. 3 Ch. 
 301 ; 37 L. J. Oh. 367, affirming a 
 decree of Lord Komilly, M. E., 
 L. E. 4 Eq. 200 ; 36 L. J. Gh. 938. 
 
 {I) See ante, p. 518. 
 
 (m) ShoM V. McMahon, i Dru. & 
 
 War. (Ir.) 431. • 
 
 (re) Bain v. Lescher, 11 Sim. 397. 
 The principle of the decisions in 
 these cases is stated with singular 
 lucidity by Lord Macclesfield, C, 
 in Bagwell v. Dry, 1 P. Wms. 700. 
 
APPENDIX. 
 
 Note A. (p. 8.) 
 
 The facts in the case of Buffield v. Elwes (a), so frequently Pacts in 
 mentioned in the text were these : — G. Elwes was the holder of ^"#«^<^ ^■ 
 a bond for £2927, and also of a mortgage deed of even date with 
 that instrument made for the purpose of securing the sum 
 mentioned in it. In addition to these securities he possessed 
 another mortgage for £30,000. On Sept. 1, 1821, Elwes was 
 in a dying state, too iU to be able to write, but nevertheless in 
 full possession of his mental faculties. On the day in question, 
 in the presence of three persons as witnesses, he declared that 
 he gave the bond and mortgages, and the money secured by 
 them, to his daughter, Mrs. Dufiield. This declaration was 
 then put into writing and was signed by the three witnesses 
 who heard Mr. Elwes make it. Subsequently, on the same 
 day, and in presence of the same persons, the mortgage deeds 
 and bond were produced to Mr. Elwes, and on being told what 
 they were, he desired that they should be delivered into the 
 hands of Mrs. Duffield. On this being done, and while she held 
 the documents, he took her hands between his, in token of 
 having completed the gift, and then expressed satisfaction at 
 what he had done. He died on the following day. 
 
 A suit was afterwards instituted in order to ascertain the Suit instituted, 
 rights of the parties under the settlement and Will of Mr. 
 Elwes, and one of the questions to be determined was, Whether 
 both or either of the mortgage debts passed to Mrs. Duffield 
 by the death-bed gift of her father t In support of her claim. Arguments in 
 Mr. Bell and Mr. Sugden argued that, inasmuch as the doctrine support of 
 was — even then — established that a debt due on a bond might ^ 
 pass by the delivery thereof as a donatio mortis causd, so at 
 
 (o) See 1 Sim. & Stu. 243 ; 1 L. J. (0. S.) Ch. 213 ; 1 Bligh (IT.S.), 
 497 ; 1 Hop. Leg. 19. 
 
780 
 
 "WILLS OF PEESONAL PROPERTY. 
 
 Judgment of 
 Sir J. Jjeach, 
 
 reversed by the 
 House of Lords. 
 
 Extract from 
 Lord Eldon's 
 judgment. 
 
 least the mortgage of Mr. Elwes, -whicli was secured by deed 
 and bond would pass to Mrs. Duffield even if the other would 
 not. But they contended that the mortgage not so secured, 
 would also pass, because as money due on a bond passes by its 
 delivery, so, by analogy, a debt secured by mortgage alone 
 must pass by the delivery of the instrument which creates the 
 security. 
 
 Sir John Leach, V.-C, however, after being inclined to think 
 that the delivery of the mortgage deed and the bond securing 
 payment of the debt might be a valid donatio mortis causd, 
 abandoned that view and held that neither gift to Mrs. Duffield 
 was complete, therefore, that both were invalid as donationes 
 mortis causd. 
 
 On appeal to the House of Lords, that tribunal reversed the 
 Vice-Chancellor's decision, and held that the gift of the deeds 
 amounted to a valid donatio mortis causd. Their lordships 
 declared that the property in the instruments, and the right to 
 recover the money secured by them, passed by their delivery 
 followed by the death of the donor, also that the real and 
 personal representatives of the donor were trustees for the 
 donee to make the gift effectual. 
 
 " In the present case," said Lord Eldon, " the bond, the 
 assignment, the covenant, and all the deeds are deUvered over 
 in such a manner that the representatives of the donor could 
 not get at them ; and the question is, whether, considering the 
 difference between an absolute estate in land and a mortgage, 
 the same principle does not apply in the case of a mortgage 
 as in the case of a bond? Upon the whole, then, I am of 
 opinion, that the delivery of these securities is a good donatio 
 mortis causd, as raising a trust by operation of law ; and that, 
 as so raising a trust by operation of law, they are not, within 
 the operation of the Statute of Frauds (S). 
 
 Note B. (p. 64.) 
 
 The statement in the text is erroneous. An appeal from a 
 decision in the Probate Division of the High Court of Justice 
 
 {h) ;9 Car. 2, o. 3. 
 
APPENDIX. 781 
 
 now lies to the Court of Appeal, and by the Appellate Juris- 
 diction Act, 1876, 39 & 40 Vict. c. 59, s. 3, from the Court of 
 Appeal to the House of Lords. 
 
 The great case of Sugden v. Lord St. Leonards (K R. 1 P. & 
 D. (N.S.), App. 154; 45 L.J. P. D. & A. 1, and on Appeal 49), 
 was the first which went from the Probate Division of the High 
 Court of Justice to the Court of Appeal, after the Judicature 
 Acts came into operation. Before its decision by the latter tri- 
 bunal, counsel for the respondents — the plaintiiFs below — raised 
 a preliminary objection to the effect that, the appeal must be on 
 questions of law only, arising on the original decree made by Sir 
 James Hannen ; they also contended that ihs facts, found by the 
 President of the Probate, Divorce, and Admiralty Division must 
 be taken to be conclusive. But after hearing the arguments of 
 both sides on this point, the Lord Chief Justice said : — " We 
 have come to the conclusion that it is optional with the parties, 
 if they think it would be advantageous that the learned 
 President should reconsider the evidence with a view to the 
 decision of the facts, and upon the facts with a view to the 
 decision of the cause, to apply to him ; but that it is not 
 obligatory upon them to do that. They may treat the decree 
 as a, final decree in the cause and appeal from it." Questions of 
 fact, then, as well as of law, in Probate cases, may come before 
 and be decided by the Court of Appeal. 
 
782 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 Meaning of 
 certain words 
 in this Act: 
 
 "WiU;" 
 
 12 Car. 2, 
 c. 21. 
 ' ' Real 
 
 "Personal 
 Estate ; " 
 
 Xnmber ; 
 Gender. 
 
 All property 
 may be dis- 
 posed of by 
 ■Will,. 
 
 comprising 
 customary 
 freeholds and 
 copyholds 
 "without sur- 
 render and 
 before ad- 
 
 THE WILLS ACT, 1838(a). 
 
 7 Will. IV. & 1 Viot. Cap. XXVL 
 
 An Act for the Amendment of the Laws with respect to Wills. 
 ISdJuly, 1837.] 
 
 Be it enacted by the Queen's most Excellent Majesty, hy and with the 
 advice and consent of the Lords Spiritual and Temporal, and Commons, in 
 this present Parliament assembled, and by the authority of the same, that 
 the words and expressions hereinafter mentioned, which in their ordinary 
 signification have a more confined or a different meaning shall in this Act, 
 except where the nature of the provision or the context of the Act shall 
 exclude such construction, he interpreted as follows ; (that is to say,) the 
 word "WiU" shall extend to a testament, and to a codicil, and to an 
 appointment by Will or by writing in the nature of a Will in exercise of a 
 power, and also to a disposition by Will and testament or devise of the 
 custody and tuition of any child, by virtue of an Act passed in the twelfth 
 year of the reign of King Charles the Second, intituled "An Act for 
 taking away the Court of Wards and Liveries, and Tenures in capite ajid 
 by Knights Service and Purveyance, and for settling a Revenue upon His 
 Majesty in lieu thereof, " or by virtue of an Act passed in the Parliament of 
 Ireland in the fourteenth and fifteenth years of the reign of King Charles the 
 Second, intituled "An Aottbrtakingaway the Court^of Wards and Liveries 
 and Tenures in capite and by Knights Service," and to any other Testamen- 
 tary disposition ; and the words "Real Estate" shall extend to manors, ad- 
 vowsons, messuages, lands, tithes, rents, and hereditaments, whether free- 
 hold, customary freehold, tenant right, customary or copyhold, or of any 
 other tenure, and whether corporeal, incorporeal, or personal, and to any un- 
 divided share thereof, and to any estate, right, or interest (other than a 
 chattel interest) therein ; and the words ' ' Personal Estate " shall extend 
 to leasehold estates and other chattels real, and also to monies, shares of 
 government and other funds, securities for money (not being real estates), 
 debts, choses in action, rights, credits, goods, and all other property what- 
 soever which by law devolves upon the executor or administrator, and to 
 any share or interest therein ; and every word importing the singular 
 number only shall extend and be applied to several persons or things as 
 well as one person or thing ; and every word importing the masculine 
 gender only shall extend and be applied to a female as well as a male. 
 
 [The 2nd and36th sections of this Act have heen repealed by the Statute 
 Law Revision Act, 1874, 37 & 38 Vict. c. 35 ; it is therefore unnecessary 
 to print them. As to the effect of the Statute Law Revision Acts, see 
 the preamble to the above, and its first section.] 
 
 III. And be it further enacted, that it shall be lawful for every person 
 to devise, bequeath, or dispose of, by his Will executed in manner herein- 
 after required, all real estate and all personal estate which he shall be 
 entitled to, either at law or in equity, at the time of his death, and which, 
 if not so devised, bequeathed, or disposed of, would devolve upon the heir- 
 at-law or customary heir of him, or, if he became entitled by descent, of 
 his ancestor, or upon his executor or administrator ; and that the power 
 hereby given shall extend to all real estate of the nature of customary 
 freehold or tenant right, or customary or copyhold, notwithstanding that 
 the testator may not have surrendered the same to the use of his WiU, or 
 notwithstanding that, being entitled as heir, devisee, or otherwise to be 
 admitted thereto, he shall not have been admitted thereto, or notwith- 
 standing that the same, in consequence of the want of a custom to devise 
 
 {a) As this Statute extends only to Wills made after Jan. 1, 1838 (see sect 84) 
 throughout this bock it has been styled as above. 
 
APPENDIX. 
 
 783 
 
 or to surrender to the use of a Will or otherwise, could not at law have 
 been disposed of by WiU if this Act had not been made, or notwithstand- 
 ing that the same, in Consequence of there being a custom that a Will or 
 a surrender to the use of a Will should continue in force for a limited time 
 only, or any other special custom, could not have been disposed of by 
 AVill according to the power contained in this Act, if this Act had not 
 been made ; and also to estates pwr autre vie, whether there shall or shaU 
 not be any special occupant thereof, and whether the same shall be free- 
 hold, customary freehold, tenant right, customary or copyhold, or of any 
 other tenure, and whether the same shall be a corporeal or an incorporeal 
 hereditament ; and also to all contingent, executory, or other future 
 interests in any real or personal estate, whether the testator may or may 
 not be ascertained as the person or one of the persons in whom the same 
 respectively may become vested, and whether he may be entitled thereto 
 under the instrument by which the same respectively were created or under 
 any disposition thereof by deed or Will ; and also to all rights of entry for 
 conditions broken, and other rights of entry ; and also to such of the 
 same estates, interests, and rights respectively, and other real and personal 
 estates, as the testator may be entitled to at the time of his death, not- 
 withstanding that he may become entitled to the same subsequently to the 
 execution of his Will. « 
 
 IV. Provided always, and be it farther enacted, that where any real 
 estate of the nature of customary freehold or tenant right, or customary or 
 copyhold, might, by the custom of the manor of which the same is holden, 
 have been surrendered to the use of a Will, and the testator shall not have 
 surrendered the same to the use of his Will, no person entitled or claiming 
 to be entitled thereto by virtue of such Will shall be entitled to be 
 admitted, except upon payment of all such stamp' duties, fees, and sums 
 of money as would have been lawfully due and payable in respect of the 
 surrendering of such real estate to the use of the Will, or in respect of 
 presenting, registering, or enrolling such surrender, if the same real estate 
 had been surrendered to the use of the Will of such testator : Provided 
 also, that where the testator was entitled to have been admitted to such 
 real estate, and might, if he had been admitted thereto, have surrendered 
 the same to the use of his Will, and shall not have been admitted thereto, 
 no person entitled or claiming to be entitled to such real estate in conse- 
 quence of such Will shall be entitled to be admitted to the same real estate 
 by virtue thereof, except on payment of aU such stamp duties, fees, fine, 
 and sums of money as would have been lawfully due and payable in respect 
 of the admittance of such testator to such real estate, and also of all such 
 stamp duties, fees, and sums of money as would have been lawfully due 
 and payable in respect of surrendering such real estate to the use of the 
 Will, or of presenting, registering, or enrolling such surrender, had the 
 testator been duly admitted to such real estate, and afterwards surrendered 
 the same to the use of his Will ; all which stamp duties, fees, fine, or 
 sums of money due as aforesaid shall be paid in addition to the stamp 
 duties, fees, fine, or sums of money due or payable on the admittance of 
 such person so entitled or claiming to be entitled to the same real estate as 
 aforesaid. 
 
 V. And be it further enacted, that when any real estate of the nature 
 of customary freehold or tenant right, or customary or copyhold, shall be 
 disposed of by WiU, the lord of the manor or reputed manor of which such 
 real estate is holden, or his steward, or the deputy of such steward, shall 
 cause the Will by which such disposition shall be made, or so much 
 thereof as shall contain the disposition of such real estate, to be entered on 
 the Court Rolls of such manor or reputed manor ; and when any trusts 
 are declared by the Will of such real estate, it shall not be necessary to 
 enter the declaration of such trusts, but it shall be sufficient to state in 
 the entry on the Court Rolls that such real estate is subject to the trusts 
 declared by such Will ; and when any such real estate could not have been 
 
 mittance, and 
 also such of 
 them as 
 cannot now 
 be devised ; 
 
 Estates pur 
 autre vie ; 
 
 contingent 
 interests ; 
 
 Eights of 
 entry ; and 
 property 
 acquired after 
 execution of 
 the WiU. 
 
 As to the fees 
 and fines 
 payable by 
 devisees of 
 customai7 and 
 copyhold 
 estates 
 
 Wills or 
 extracts of 
 Wills of 
 customary 
 freeholds and 
 copyholds to 
 be entered on 
 the Court 
 rolls ; 
 
784 
 
 WILLS OF PERSONAL PEOPERTY. 
 
 and the lord 
 to be entitled 
 to the same 
 fine, &o., 
 when such 
 estates are not 
 noTv devisable 
 as he would 
 have been from 
 the heir in 
 case of descent. 
 
 Estates pur 
 autre vie. 
 
 No Vill of a 
 person under 
 age valid ; 
 
 nor of a feme 
 covert, except 
 such as might 
 now be made. 
 
 Every Will 
 shall be in 
 writing, and 
 signed by the 
 testator in the 
 presence of 
 two witnesses 
 at one time. 
 
 Appointments 
 by Will to be 
 executed like 
 other Wills, 
 and to be 
 valid, although 
 other required 
 solemnities are 
 not observed. 
 
 Soldiers and 
 mariners Wills 
 excepted. 
 
 Publication not 
 to be requisite. 
 
 Will not to be 
 void on account 
 of incompe- 
 tency of attest- 
 ing witness. 
 
 Gifts to an 
 attesting 
 
 disposed of by Will if this Act had not been made, the same fine, heriot, 
 dues, duties, and services shall be paid and rendered by the devisee as 
 would have been due from the customary heir in case of the descent of the 
 same real estate, and the lord shall, as against the devisee of such estate, 
 have the same remedy for recovering and enforcing such fine, heriot, dues, 
 duties, and services as he is now entitled to for recovering and enforcing 
 the same from or against the customary heir in case of a descent. 
 
 VI. And be it further enacted, that if no disposition by Will shall be 
 made of any estate fur autre, vie of a freehold nature, the same shall be 
 chargeable in the hands of the heir, if it shall come to him by reason of 
 special occupancy, as assets by descent, as in the case of freehold land in 
 fee simple ; and in case there shall be no special occupant of any estate 
 pur autre vie, whether freehold or customary freehold, tenant right, ousto- 
 maiy or copyhold, or of any other tenure, and whether a corporeal or in- 
 corporeal hereditament, it shall go to the executor or administrator of the 
 party that had the estate thereof by virtue of the grant ; and if the same 
 shall come to the executor or administrator either by reason of a special 
 occupancy or by virtue of this Act, it shall be assets in his hands, and 
 shall go and be applied and distributed in the same manner as the personal 
 estate of the testator or intestate. 
 
 VII. And be it further enacted, that no Will made by any person under 
 the age of twenty7one years shall be valid. 
 
 VIII. Provided also, and be it further enacted that no Will made by 
 any married woman shall be valid, except such a Will as might have been 
 made by a married woman before the passing of this Act. 
 
 IX. And be it further enacted, that no Will shall be valid unless it 
 shall be in writing and executed in manner herein-after mentioned ; (that 
 is to say), it shall be signed at the foot or end thereof by the testator, or 
 by some other person in his presence and by his direction ; and such 
 signature shall be made or acknowledged by the testator in the presence of 
 two or more witnesses present at the same time, and such witnesses shall 
 attest, and shall subscribe the WUl in the presence of the testator, but no 
 form of attestation shall be necessary. 
 
 [Amended and explained by 15 & 16 Vict. c. 24 (1S52), see next Act] 
 
 X. And be it further enacted, that no appointment made by Will, in 
 exercise of any power, shall be valid, unless the same be executed in 
 manner herein-before required ; and every Will executed in manner 
 herein-before required, shall, so far as respects the execution and attesta- 
 tion thereof, be a valid execution of a power of appointment by WUl, 
 notwithstanding it shall have been expressly required that a Will made in 
 exercise of such power should be executed with some additional or other' 
 form of execution or solemnity. 
 
 XL Provided always, and be it further enacted, that any soldier being 
 in actual military service, or any mariner or seaman being at sea, may 
 dispose of his personal estate as he might have dona before the making of 
 this Act. 
 
 XII. [This section was repealed by 28 & 29 Vict. c. 112; "The 
 Admiralty, &c., Repeal Acts, 1865. " Wills of Seamen, &e., are regulated by 
 the " Act to make better provision respecting Wills of Seamen and Marines 
 of the Royal Navy and Marines," 28 & 29 Vict. c. 72, which was passed 
 about a month before the former Act.] 
 
 XIII. And be it further enacted, that every Will executed in manner 
 herein-before required shall be valid without any other publication thereof. 
 
 XIV. And be it further enacted, that if any person shaH attest the 
 execution of a Will shall at the time of the execution thereof or any time 
 afterwards be incompetent to be admitted a witness to prove the execution 
 thereof, such Will shall not on that account be invalid. 
 
 XV. And be it further enacted, that if any person who shall attest the 
 execution of any Will to whom or to whose wife or husband any beneficial 
 devise, legacy, estate, interest, gift, or appointment, of or afiecting any 
 
APPENDIX. 
 
 reol or personal estate (other than and except charges and directions for 
 the payment of any deht or dehts), shall be thereby given or made, such 
 devise, legacy, estate, interest, gift, or appointment shall, so far only as 
 concerns such person attesting the execution of such Will, or the wife or 
 husband of such person, or any person claiming under such person or wife 
 or husband, he utterly null and void, and such person so attesting shall he 
 admitted as a witness to prove the execution of such Will or to prove the 
 validity or invalidity thereof, notwitlistanding such devise, legacy, estate, 
 interest, gift, or appointment mentioned in such Will. 
 
 XVI. And be it further enacted, that in case by any Will any real or 
 personal estate shall he charged witli any debt or debts, and any creditor, 
 or the wife or husband of any creditor, whose debt is so charged shall 
 attest the execution of such Will, such creditor, notwithstanding such 
 chai-ge, shall be admitted a mtness to prove the execution of such WiU, or 
 to prove the validity or invalidity thereof. 
 
 XVII. And be it further enacted, that no person shall, on account of 
 his being an executor of a Will, be incompetent to be admitted a witness 
 to prove the execution of such Will, or a witness to prove the validity or 
 invalidity thereof. 
 
 XVIII. And be it further enacted, that every Will made by a man or 
 woman shall be revoked by his or her marriage (except a Will made in 
 exercise of a power of appointment, when the real or personal estate there- 
 by appointed would not in default of such appointment pass to his or her 
 heir, customary heir, executor, or administrator, or the person entitled as 
 his or her next-of-kin, under the Statute of Distributions). 
 
 XIX. And be it further enacted, that no Will shall be revoked by any 
 presumption of any intention, ou the ground of an alteration in circum- 
 stances. 
 
 XX. And be it further enacted, that no Will or codicil, or any part 
 thereof, shall be revoked otherwise than as aforesaid, or by another "Will 
 or codicil executed in manner herein-before rccjuired, or by some writing 
 declaring an intention to revoke the same, and executed in the manner in 
 which a Will is herein-before required to be executed, or by the burning, 
 tearing, or otherwise destroying the same by the testator, or by some 
 person in his presence and by his direction, with the intention of revoking 
 the same. 
 
 XXI. And be it further enacted, that no obliteration, interlineation, or 
 other alteration made in any Will after the execution thereof shall be valid 
 or have any effect, except so far as the words or effect of the Will before 
 such alteration shall not be apparent^ unless such alteration shall be 
 executed in like manner as herein-before is required for the execution of 
 the Will ; but the Will, with such alteration as part thereof, shall be 
 deemed to be duly executed if the signature of the testator and the sub- 
 scription of'the witnesses be made in the margin or on some other part of 
 the Will opposite or near to such alteratiou, or at the foot or end of or 
 opposite to a memorandum referring to such alteration, and written at the 
 end or some other pai't of the WiU. 
 
 XXII. And be it further enacted, that no WUl or codicil, or any part 
 thereof, which shall be in any manner revoked, shall be revived otherwise 
 than by the re-execution thereof, orhy acodieU executed in manner herem- 
 before required, and showing an intention to revive the same ; and when 
 any Will or codicil which shall be pai'tly revoked, and afterwai'ds wholly 
 revoked, shall be revived, such revival shall not extend to so much thereof 
 as shall have been revoked before the revocation of the whole thereof, un- 
 less an intention to the conti'ary shall be shown. 
 
 XXIII. And be it further enacted, that no conveyance or other act 
 made or done subsequently to the execution of a WUl of or relating to any 
 real or personal estate therein comprised, except an act by which such 
 Will shall be revoked as. aforesaid, shall prevent the operation of the Will 
 
 3 E 
 
 witness to be 
 void. 
 
 Creditor 
 attesting io be 
 admitted a 
 witness. 
 
 Executor to 
 be admitted a 
 witness. 
 
 Will to be 
 revoked by 
 marriage. 
 
 No Will to be 
 revoked by 
 presumption. 
 
 No Will to be 
 revoked but by 
 another Will 
 or codicil, or 
 by a writing 
 executed like 
 a Will, or by 
 destruction. 
 
 No alteration 
 in a Will shall 
 have any effect 
 unless exe- 
 cuted as a 
 Will. 
 
 No Will 
 revoked to be 
 revived other- 
 wise than by 
 re-execution or 
 a codicil to 
 revive it. 
 
 A devise not 
 to be rendered 
 inoperative by 
 any subsequent 
 
786 
 
 WILLS OF PERSONAL PKOPERTY. 
 
 conveyance or 
 act. 
 
 A Wm shall 
 be construed 
 to speak from 
 tlie death of 
 the testator. 
 
 A residuary 
 devise shall 
 include estates 
 comprised in 
 lapsed and 
 void devises. 
 
 A general 
 devise of the 
 testator's lands 
 shall include 
 copyhold and 
 leasehold as 
 ■well as free- 
 hold lands. 
 
 A general gift 
 shall include 
 estates over 
 which the 
 testator has a 
 general power 
 of appoint- 
 pient. 
 
 A devise 
 without any 
 words of 
 limitation shall 
 he construed 
 to pass the 
 fee. 
 
 The words 
 ' ' die without 
 issue," or 
 "die without 
 leaving issue," 
 shall be con- 
 strued to mean 
 die without 
 issue living at 
 the death. 
 
 No devise to 
 
 with respect to such estate or interest in such real or personal estate as the 
 testator shall have power to dispose of by Will at the time of his death. 
 
 XXIV. And be it further enacted, that every "Will shall be construed, 
 with reference to the real estate and personal estate comprised in it, to 
 speak and take effect as if it had been executed immediately before the 
 death of the testator, unless a contrary intention shall appear by the 
 "Will. 
 
 XXY. And be it further enacted, that, unless a oontraiy intention 
 shall appear by the "WiU, such real estate or interest therein as shall be 
 comprised or intended to be comprised in any devise in such "Will con- 
 tained, which shall fail or be void by reason of the death of the devisee in 
 the lifetime of the testator, or by reason of such devise being contrary to 
 law or otherwise incapable of taking effect, shall be included in the re- 
 siduary*devise (if any) contained in such "Will. 
 
 XXVI. And be it further enacted, that a devise of the land of the tes- 
 tator, or of the laud of the testator in any place or in the occupation of 
 any person" mentioned in his "Will, or otherwise described in a general 
 manner, and any other general devise which would describe a customary, 
 copyhold, or leasehold estate if the testator had no freehold estate which 
 could be described by it, shall be construed to include the customary, 
 copyhold, and leasehold estates of the testator, or his customary, copyhold, 
 and leasehold estates, or any of them, to which such description shall 
 extend, as the case may bfe, as well as freehold estates, unless a contrary 
 intention shall appear by the "Will. 
 
 XXVII. And be it further enacted, that a general devise of the real 
 estate of the testator, or of the real estate of the testator in any place or in 
 the occupation of any person mentioned in his "WiU, or otherwise described 
 in a general manner, shall be construed to include any real estate, or any 
 real estate to which such description shall extend (as the case may be), 
 which he may have power to appoint in any manner he may think proper, 
 and shall operate as an execution of such power, unless a contrary inten- 
 tion shall appear by the "Will ; and in like manner a bequest of the personal 
 estate of the testator, or any bequest of the personal property described in 
 a general manner, shall be construed to include any personal estate, or any 
 personal estate to which such description shall extend (as the case may 
 be), which he may have power to appoint in any manner he may think 
 proper, and shall operate as an execution of such power, unless a contrary 
 intention shall appear by the "Will. 
 
 XXVIII. And bo it further enacted, that where any real estate shall be 
 devised to any person without any words of limitation, such devise shall 
 be construed to pass the fee simple, or other the whole estate or interest 
 which the testator had power to dispose of by Will in such real estate, 
 unless a contrary intention shall appear by the Will. 
 
 XXIX. And be it further enacted, that in any devise or bequest of real 
 or personal estate the words " die without issue," or " die without leaving 
 issue," or "have no issue," or any other words which may import either a 
 want or failure of issue of any person in his lifetime or at the time of his 
 death, or an indeiinite failure of his issue, shall be construed to mean a 
 want or failure of issue in the lifetime or at the time of the death of such 
 person, and not an indefinite failure of his issue, unless a contrary inten- 
 tion shall appear ty the WiU, by reason of such person having a prior 
 estate tail, or of a preceding gift, being, without any implication arising 
 from such words, a limitation of an estate tail to such person or issue, or 
 otherwise : Provided, that this Act shall not extend to cases where such 
 words as aforesaid import if no issue described in a preceding gift shall be 
 born, or if there shall be no issue who shall live to attain the age or other- 
 wise answer the description required for obtaining a vested estate by a 
 preceding gift to such issue. 
 
 XXX. And be it further enacted, that where any real estate (other than 
 
APPENDIX. 
 
 787 
 
 or not being a presentation to a eliuroh) shall be devised to any trustee or 
 executor, such devise shall be construed to pass the fee simple or other the 
 whole estate or interest which the'testator had power to dispose of by Will 
 in such real estate, unless a definite term of years, absolute gr determin- 
 able, or an estate of freehold, shall thereby be given to him expressly or 
 by implication. 
 
 XXXI. And be it further enacted, that where any real estate shall be 
 devised to a trustee, without any express limitation of the estate to be 
 taken by such trastee, and the beneficial interest in such real estate, or in 
 the sui-plus rents and profits thereof, shall not be given to any person for 
 life, or such beneficial interest shall be given to any person for life, but 
 the purposes of the trust may continue beyond the life of such person, such 
 devise shall be construed to vest in such trustee the fee simple or other the 
 whole legal estate which the testator had power to dispose of by Will in 
 such real estate, and not an estate determinable when the purposes of 
 the trust shall be satisfied. 
 
 XXXII. And be it further enacted, that where any person to whom any 
 real estate shaU be devised for an estate tail or an estate in quasi entail 
 shall die in the lifetime of the testator leaving issue who would be in- 
 heritable under such entail, and any such issue shall be living at the time 
 of the dearth of the testator, such devise Shall not lapse, but shall take 
 effect as if the death of such person had happened immediately after 
 the death of the testator, unless a contrary intention shall appear by the 
 Will. 
 
 XXXIII. And be it further enacted, that where any person being a child 
 or other issue of the testator to whom any real or personal estate shall be 
 devised or bequeathed for any estate or interest not determinable at or 
 before the death of such person shall die in the lifetime of the testator 
 leaving issue, and any such issue of such person shall be living at the time 
 of the death of the testator, such devise or bequest shall not lapse, but 
 shall take effect as if the death of such person had happened immediately 
 after the death of the testator, unless a contrary intention shall appear by 
 the Wm. 
 
 XXXIV. And be it further enacted, that this Act shall not extend to 
 any Will made before the fiist day of January one thousand eight hun- 
 dred and thii'ty-eight, and that every Will re-executed or republished, or 
 revived by any Codicil, shall for the purposes of this Act bg deemed to 
 have been made at the time at which the same shall be so re-executed, re- 
 published, or revived ; and that this Act shall not extend to any estate 
 pur autre me of any person who shall die before the first day of January 
 one thousnad eight hundred and thirty-eight. 
 
 XXXV. And be it further enacted, that tl^is Act shall not extend to 
 Scotland. 
 
 XXXVI. [Repealed by "The Statute Law Eevision Act, 1871." See 
 remarks on Sect. 2, ante."] 
 
 trustees or 
 executors, 
 except for a 
 term or a 
 presentation 
 to a church, 
 shall pass a 
 chattel 
 interest. 
 
 Trustees under 
 an unlimited 
 devise, where 
 the trust may 
 endure beyond 
 the life of a 
 person bene- 
 ficially entitled 
 for life, to 
 take the fee. 
 
 Devises of 
 estates tail 
 shall not lapse. 
 
 Gifts to 
 children or 
 other issue 
 ■who leave issue 
 living at the 
 testator's death 
 shall not lapse. 
 
 Act not to 
 extend to Wills 
 made before 
 1838, nor to 
 Estates pur 
 autre vie of 
 persons who 
 die before 
 1838. 
 
 Act not to 
 extend to 
 Scotland. 
 
 THE WILLS ACT AMENDMENT ACT, 1852. 
 Cap. XXIV. 
 
 An Act for the amendment of an Act passed in tlie first year of the reign of 
 Ser Majesty Queen Victoria, intituled "An Act for the Amendment of 
 the Laws viith respect to Wills." \l1th June, 1852.] 
 
 Whekbas the Laws with respect to the execution of Wills require 
 further amendment : Be it therefore enacted by the Queen's most Excellent 
 Majesty, by and with the_ advice and consent of the Lords Spiritual and 
 
 3 E 2 
 
788 
 
 "WILLS OF PERSONAL PBOPERTY. 
 
 1 Vict. c. 25. 
 
 When signa- 
 ture to a will 
 shall be 
 deemed valid. 
 
 Act to extend 
 to certain Wills 
 already made. 
 
 Interpretation 
 of "Will." 
 
 Short Title of 
 Act. 
 
 Temporal, and Commons, in this present parliament assembled, and by the 
 authority of the same (as follows) : 
 
 I. Where by an Act passed in the first year of the reign of Her Majesty 
 Queen Victoria, intituled An Act for the Amendment of the Laws with 
 respect to Wills, it is enacted, that no Will shall be valid unless it shall be 
 signed at the foot or end thereof by the testator, or by some other person 
 in his presence, and by his direction : Every Will shall, so far only as 
 regards the position of the signature of the testator, or of the person sign- 
 ing for him as aforesaid, be deemed to be valid within the said enactment, 
 as explained by this Act, if the signature shall be so placed at or after, or 
 following, or under, or beside, or opposite to the end of the Will, that it 
 shall be, apparent on the face of the Will that the testator intended to give 
 effect by such his signature to the writing signed as his Will, and that no 
 such Will shall be affected by the circumstance that the signatui-e shall not 
 follow or be immediately after the foot or end of the will, or by the cir- 
 cumstance that a blank space shall intervene between the concluding word 
 of the Will and the signatiue, or by the circumstance that the signature 
 shall be placed among the words of the Testimonium Clause or of the 
 Clause of Attestation, or shall follow or be after or under the Clause of 
 Attestation, either with or without a blank space intervening, or shall 
 follow or be after, or under, or beside the names or one of the names of the 
 subscribing witnesses, or by the circumstance that the signature shall be 
 on a side or page or other portion of the paper or papers containing the 
 Will whereon no clause or paragraph or disposing part of the Will shall be 
 wi'itten above the signature, or by the circumstance that there shall appear 
 to be sufficient space on or at the bottom of the preceding side or page or 
 other portion of the same paper on which the Will is written to contain 
 the signature ; and the enumeration of the above circumstances shall not 
 restrict the generality of the above enactment ; but no signature under 
 the said Act or this Act shall be operative to give effect to any disposition 
 or direction which is underneath or which follows it, nor shall it give 
 effect to any disposition or directibn inserted after the signature shall be 
 made. 
 
 II. The provisions of this Act shall extend and be applied to every Will 
 already -made, where administration or probate liSB not abeady been 
 gi'anted or ordered by a Court of competent jurisdiction in consequence of 
 the defective execution of such Will, or where the property, not being 
 within the jurisdiction of the Ecclesiastical Coui'ts, has not been possessed 
 or enjoyed by some person or persons claiming to be entitled thereto in 
 consequence of the defective execution of such Will, or the right thereto 
 shall not have been decided to be in some other person or persons 
 than the persons claiming under the Will, by a Court of competent 
 Juri.sdiction, in consequence of the defective execution of such Will. 
 
 III. The word "Will" shall in the construction of this Act be inter- 
 preted in like manner as the same is directed to be interpreted under the 
 provisions in this behalf contained in the said Act of the iirst year of the 
 reign of Her Majesty Queen Victoria. 
 
 IV. This Act may be cited as "The Wills Act Amendment Act, 
 1852." 
 
INDEX. 
 
 ABATEMENT, 
 
 of legacies, i16 
 
 when, of specific legacies, 477 
 
 ABROAD. (That is out of Jurisdiction.) 
 
 executor or administrator, 713 — 716, 721 
 
 ABSENCE, 
 
 grants of administration during, of executor, 683, 719 
 
 ACCESSORIES, 
 
 right of devisee to, 88 
 
 tenant for life not entitled to remove, 657 
 
 ACCIDENT, 
 
 Will destroyed by, 415 
 
 ACCOUNT, 
 
 executor bound to give, 462 
 
 executor de son tort bound to render, to legal representative, 577, 
 
 681 
 executor carrying on business bound to render, 586, 591, 592, 593, 594 
 action for, against executor or administrator, iu Chancery Division 
 H. C. J., 464, 591, 592, 767, et seq. 
 
 ACCUMULATIVE LEGACIES. See Cumulative Legacies. 
 
 ACKNOWLEDGMENT, 
 
 by testator of his signature, 316, et seq, 
 
 ACTION, 
 
 every proceeding now called, by Judicature Act, 21 (;■) 
 
 "ACTIO PERSONALIS MORITUR CUM PERSONA," 183, 184 
 
 ACTUAL SERVICE. (Naval or Military.) 
 defined, 272, 273 
 
 AD COLLIGENDUM, 
 grant of, 711, 712 
 
 ADEMPTION, 
 
 constructive, of legacy, 7, 52, 53 
 
790 INDEX. 
 
 ADEMPTION OP LEGACIES, 
 by donatio mortis camsd, 6 
 when by gift imter vivos, id.] 
 by portion, 52, 53 
 
 onus prohandi when strangers are legatees, 53 
 same where children are legatees, id, 
 and satisfaction pro ianto, id. 
 
 AD LITEM. See also the Additional Cases at p. xxxvii. 
 guardian, 311 
 grant, 717-719 
 distinction between grant, and that pendente lite, id. 
 
 ADMINISTRATION. See also Distbibution, and the Additional Cases at 
 p. xxxvii. 
 cwm testamento annecco, 1, 60, 464, 683, 692 
 letters of, 1, 59, 61 
 under Jurisdiction Act (1852), 45 
 unchanged by Judicature Act, 46 
 suit, now called " action," 48 
 cum testamento annexe when issues, 60, 464 
 when Probate Division, H. C. J., said to grant, 62 
 grantees of, id. 
 
 in whom property vests before letters of, granted, id, 
 meaning of " vested," 63 
 
 in whom property vests after letters of, granted, id. 
 taking of, delayed for three years, practice when, id. 
 letters of, relate back to time of intestate's death, 581 (p) 
 de bonis non, what it is, 584 
 granted to two accrues to the survivor, id. 
 letters of, within what period must be taken out, 600 
 nature of affidavit required to obtain letters of, id, 
 general grants of, 683 
 limited, id. et seq. 
 discretion of President of Probate Division, H. C. J. as to granting, 694, 
 
 695 
 sole administration preferred to joint, 702, 705 
 N.B, (For the various kinds of Administration and the persons who may 
 respectively be entitled to grants, see under the proper titles.) 
 caeteris paribus, first applicant takes grant of, 703, 705 
 case of applicant for, having been bankrupt, 703 
 not granted to more than three persons, 705 
 granted to nominee of majority of interests, 705, 706 
 See "Whole Blood and Half-blood 
 
 granted alike to relations ex parte paternd and ex parte maternd, 707 
 grant of, to creditor, 710, 711 
 
 LIMITED AS TO TIME, 719 e< seq. 
 
 where executor out of jurisdiction, 713—716, 721 , 
 
 unta lost Will is found, 731 
 
 ADMINISTRATION SUIT, 
 now called " action," 48 
 
INDEX. 791 
 
 ADMINISTRATOR, 
 
 cum testamento annexo pays legacy where no executor is named in 
 
 Wil], 1, 76 
 cum tegtamento annexo, when liable to trover under old law, 21, 44 
 donatio mortis causd claimed against, 21, 48 
 legacy claimed /rom, id. id. 
 
 assent of, not necessary for donatio mortis causd, 22 
 secus of as to legacy, where Will annexed to grant, id., and 476 
 liabilities of, under Jurisdiction Act (1862), 45 
 under Judicature Act, 46, et seq. 
 or administratrix, definition of, S9 
 derives title from appointment of law, id.', 463 
 distinguished from executor, id., 463, 692 
 cum testamento annexo, definition of, 60 
 
 practically identical with executor, id., 744 
 whatever may devolve on, by law is personalty, 79 
 
 and may be bequeathed, 
 80 
 chattels real under intestacy devolve on, 81 
 assets in hands of, what are, 83 
 
 rule where chattels are annexed to freehold, id. et seq. 
 "personal representatives," 93 
 " representatives," id. [g] 
 
 contentions as to fixtures between, and heir, 98, 112 
 between, and reversioner, &o., id. id. 
 when, receives emblements, 119 
 all leases pass by law to, or executor, 132, 133 
 leasehold estates for years devolve on, 136 
 domestic animals devolve on, 139, 143. See Animals. 
 rights of, to fish, confined or caught, 143 
 in loco testatoris as to choses in action, 178 
 claims by or against, or executor, may now be joined with claims by or 
 
 against them personally, 464 
 power of, after taking letters of administration, co-extensive with that 
 
 of executor, 466 
 and executor bound to pay debts in certain order, id. 
 right of retainer by, for his own debts, id. 
 order of payment described, id. — 475 
 payment of funeral expenses by, 467 ; inventory, 468 ; collecting testa- 
 
 tor.'s effects, 469 
 payment by, of debts of (i.) an overseer of the poor, (ii.) a duly appointed 
 
 officer of a Friendly Society, (iii.) a treasurer or collector to the Metro- 
 politan Paving Oommissioners, 470 
 notice to, by creditor of his debt, 473 
 statutory notice by, or executor, to creditors, id. 
 assent of, where Will annexed to his grant of administration, is required 
 
 like that of executor, to legacy, 476 
 of executor, 683 
 of administrator, 584 
 de son tort not known to the law, 585 (x) 
 
792 INDEX. 
 
 ADMINISTRATOR— coMfaMMoi. 
 
 court cannot authorise, to carry on intestate's business, 687 
 
 where difficulty arises, should sell business without delay, 588 
 
 where, when carrying on business, may sue on contracts, id. (A) 
 
 where, unable to sue in his representative capacity, 596 
 
 carrying on business, when able to sue in his representative capacity, 
 
 S97 
 name of, not known to the Common Law, 693 
 whether a felon can be, 694 
 
 general reasons which guide the court in selecting, 702, 706, 713, 717 
 male person generally preferred to female as, 703 
 creditor, when allowed to be, 710 
 practice where, 713, 71i 
 bond of, under Statute of Distributions, and under present law, 748, 
 
 749 
 whether, may set off a personal debt against one due from him quA 
 
 administrator, 771 
 
 ADVANCEMENT, 
 
 by portion of children of intestate, 750 (r), 764 
 
 by /a ^/lei* only, contemplated by Statute of Distributions, 764 (y); hul 
 
 sec 11 5 (e) 
 meaning of term, 765 
 
 must be made or secured in father's lifetime, id., 766 
 legacy is not, id. 
 
 gift to be,, must not be under control of father, id, 
 contingent provision may be, 766, 775 
 
 father continuing control over gift makes his son a trustee, id. 
 may be partial or complete, id. 
 what sort of gift amounts to, in law, 767, et seq. 
 not every gift to child is, 769 
 gift to a child must be by way of portion to constitute, under Statute 
 
 of Distributions, 770 
 gift must be for a special purpose to constitute, id. 
 by way of portion, what it is, 771 
 father effecting pohcy of insurance on his son's hfe and retaining con. 
 
 trol over it, is allowed to retain it as against son's creditors, 771 (s) 
 by annuity is to be brought into hotchpot, 776 
 representatives of advanced children must bring, into hotchpot, 777 
 
 ADVOWSON, 
 
 is realty, 124 
 
 and "next presentation " distinguished, 124 — 126 
 
 and "next presentation," independent rights, 124 
 
 presentative, 125 (?) 
 
 devolves on heir, 125 
 
 in gross, or in fee, id., and (s) 
 
 for a term, id. 
 
 appendant, id. (s), 127 
 
 vicarage, 125, 126 
 
INBEX. 798 
 
 AD'VOWSO'S— continued. 
 
 preeentative benefice, 126 
 
 belonging to prebendary in right of prebend, id. 
 
 in fee, real assets in hands of heir, id., and (h) 
 
 devisable, id. 
 
 saleable, whether benefice vacant or not, id. 
 
 otherwise of " next presentation," the purchase of which when benefice 
 
 vacant is simony, id. 
 right to nominate to, id. («t) 
 right to present to, id. (u) ' 
 when heir presents to, 127 
 succession duty when payable on, 128 
 
 AFFIDAVIT, 
 
 of executor in common form business, 674 
 to lead citation, or now writ of summons, 677 
 of scripts, 679 
 
 AFFINTIY, 
 
 contrasted with consanguinity, 701 
 
 defined, 707 
 
 titles of persons connected by, id. 
 AFFIRMATION, 
 
 in lieu of oath, 323, 600 (6). 
 
 AGENT, 
 
 in donatio mortis causd, 27 — 32 
 
 of donor m. c, 27, 28 
 
 of donee m. t., 28 
 
 to use of donee as trustee, id. 
 
 donor, id. 
 direction to, by donor to present gift after his death, 29 ' 
 no agency between tort feasors, 578 
 executor de son tort acting as, 576 — 581 
 
 AGRICULTURAL FIXTURES, 106—110. See Fixtures. 
 
 ALIEN, 
 
 friend or enemy as executor, 458 
 
 ALLOWANCES, 
 
 to executor, 587 
 
 ALTERATIONS, 322, 344—347 
 
 AMBIGUITY, 
 
 latent and patent Aistu^aished, 358, 359, 428, 505, 506 
 
 evidence to explain latent, 358, 359 
 
 in expressions in Will construed favourably, 407 
 ANCESTOR, 
 
 derivation and correlatives of word, 69 (g) 
 
 ANIMALS, 
 
 domestic, used for food, are chattels, 138 
 tame, equivalent to chattels by statute, id. 
 
794 INDEX. 
 
 ANIMALS^conWaised. 
 
 aH domestic, devolve on executor, 139, 143 
 fens nalwce, property in, 139, 140 
 per industriam, 139, 140, 142 
 propter impotentiam, 139, 141, 142 
 
 priviUgium, 139, 142 
 animus revertendi of, 140 
 pigeons, id. 
 deer in park, id. 
 swan, id^ 
 bees, id. 
 
 rooks not protected by law, id. 
 Game Laws, 141 
 game, defined, id. 
 occupier of land entitled to game, unless reserved to landlord by special 
 
 agreement, id. 
 light may be in abeyance, id. 
 rigbt to game as against stranger, id., 142 
 qualified right to, ferce natwce, 142 
 ratione soli, id. 
 reclaimed per industriam, devolve on executor or administrator as 
 
 personal estate, id. 
 also propter impotentiam, id. 
 
 secus of animals, right to which is ratione privUegii, id., 143 
 criterion for distinguishing respective rights of heir and executor to 
 
 143 
 ferrets, lap-dogs, parrots, &o., id. 
 
 ANIMUS TESTANDI. See Intention. 
 ANNEXATION, 90, and see Fixtcbes. 
 
 ANNUITY, 
 
 may be a legacy, 49 
 
 may be equivalent to " legacy," unless contrary intention shown, 60 
 
 what, may consist of, id. 
 
 when, passes by residuary clause of Will, id. 
 
 where capital is given over, id. 
 
 peculiar character of, 194, 195, 196 
 
 how, may be created, 198, 202 
 
 "personal," meaning of, 201 
 
 charged on land, id. 
 
 distinction between, and " rent-charge," id. 
 
 remedy for, charged on lands of sufficient or insufficient value, 202 
 
 statutes affecting, when created otherwise than by Will, id. 
 
 how transferred, 203 
 
 remedy for arrears of, id. 
 
 distinguished from corpus, 204 
 
 conditions and limitations as to forfeiture of, 205 
 
 " personal," subject to legacy duty, 206 
 
INDEX. 795 
 
 AiNNVlTY—cmtmued. 
 
 not altogether chose in action, 207, 210, but rather a chattel interest in 
 
 equity, 208 
 summary of the law concerning, 210, 211 
 advancement by, to be brought into hotchpot, 776 
 
 APPEAL, 
 
 practice as to, before Judicature Acta, 64, 665, 666 
 now lies from Probate Division to Court of Appeal ; — see Note B. in 
 Appendix, 780 
 
 APPLES, 
 
 growing on tree chattels real, 80 
 also tree itself, id. 
 when picked, chattels personal, 82 
 not emblements, 123 
 
 APPOINTMENT. &e Powek. By Will, see Will. 
 Illusory, 293, 294 
 power of, described, 299 
 testamentary, not revoked by marriage, 303 
 
 ARCHES, 
 
 court of, 665 
 
 ASCENDANTS, 
 
 all lineal descendants preferred to, 757 
 
 not always preferred to collaterals in our law, id. 
 
 "ASCERTAINED," 
 
 class to be, 530, 532, 533 
 
 ASSENT, 
 
 of executor or administrator with Will, to legacy, 1, 475, 476 
 of husband to wife's Will. See Husband and Wife. 
 of executor not required to give effect to donatio mortis cautd, 21, 22 
 may be expressed or implied, 476 
 rule on the subject, id. 
 when presumed, id. 
 retracting, id. 
 
 administrator cwm testamento annexo, same as an executor in regard 
 to, id. 
 
 ASSETS, 
 
 what may be, in hands of executor, 80, 126 
 
 leases for years, 83 
 
 next presentations, id., 126, 127 
 
 growing corn, 83 
 
 grass cut and secured, id. 
 
 money, id. 
 
 stock, id. 
 
 plate, id. 
 
 furniture, id. 
 
 ordinary and legal zueaQiDg of term, 126, 127 
 
796 INDEX. 
 
 ASS'ETS—continiud. 
 
 where next presentation does not form, 127 
 
 damages in action of quare impedit, id. 
 
 equity of redemption may form legal, 128, ISO 
 
 legal and equitable, distinguished, 129-131, but see 694 (p) 
 
 distinction modified by Judicature Acts, 130, 131 
 
 equity of redemption of mortgage for term of years forms legal, 130 
 
 also of copyholds, id. 
 
 in case of estate, pur autre vie, 134 
 
 things never in hands of testator may be, 135 
 
 lease for life, remainder to executor for a term, id. 
 
 lease by Will to A. for life, on his death to B. , B. predeceasing, assets 
 
 in hands of B.'s executor, id. 
 remainder in term of years, id. 
 absolute property necessary to create, id. 
 mortgage of lease or pledge of jewels, &c., id. 
 executor may redeem, id. 
 if with testator's money then assets, id. 
 
 trust estate of which testator is trustee cannot be, of such testator, 136 
 statutory notice to be given by executor or administrator before 
 
 distributing, 473 — 475 
 marshalling of, 602 
 executor carrying on business of testator liable to account for profits 
 
 as, 594 
 mode of ascertaining whether sum sought to be recovered will be, 595 
 "in hands of executor," meaning of phrase, id. 
 
 ASSIGN, 
 
 applicable to persons acquiring property otherwise than by right of 
 blood and inheritance, 70 
 
 ASSIGNEE, 
 
 contentions as to fixtures between, and assignor, 93 
 in law, in deed, 136 and (h) 
 
 of choses in action takes subject to prior equities, 176 
 of bankrupt mortgagor his claim as to fixtures, 643 
 
 ASSIGNMENT, 
 
 of ship by bill of sale, 35, 36 
 
 of choses in action now and formerly, 177 
 
 voluntary, oifeme sole by irrevocable deed, notice as to, 209 
 
 ASSURANCE, 
 
 policy of. See Policy. 
 
 " AT " 
 
 meaning of, in certain legal terms, 74 (c?) 
 
 ATTAINTED PERSONS. See Felon and Convict. 
 
 " ATTEST AND SUBSCRIBE," 
 
 meaning of expression, 316, 326 
 
INDEX. 797 
 
 ATTESTATION CLAUSE, 
 
 Will, strictly speaking, is incomplete without, 60, 61 
 
 though not absolutely required by law, 314 
 
 imperfect, 315 
 
 why it should be inserted, id. 
 
 informal, id. 
 
 name of testator in, 316, 320 
 
 form of, id. 
 
 "ATTORNEY," 
 
 term as meaning legal practitioner abolished, 74 [d) 
 
 ATTORNEY, 
 
 power of, described, 714, n. (x) 
 
 AUNT, 
 
 when entitled to grant of administration, 705 
 when a claimant to share under Stat. Dist. 759-762 
 
 AUTRE VIE. See Tenant pub Autbe Vie. 
 
 B. 
 
 BAILMENT, 
 
 and pledge, 143 
 
 BANK OP ENGLAND, 
 
 cannot withhold corpus of stock from executor, 214 
 its stock, how distinguished from the Funds, 508 
 
 BANKER, 
 
 may not cash cheque of customer after his decease, 15 
 money in hands of, may pass by a bequest of debts, 227, ( p) 
 
 BANKER'S DEPOSIT NOTE, 
 
 money due on, may pass as donatio mortis causa, 9, 18 
 
 difference between, and cilstomer's pass-book, 15 
 
 is not chose in action, id. 
 
 requires no assignment, id. 
 
 is not a security for money, 101 
 
 BANKER'S DRAFT. See Cheque. 
 
 BANK NOTES, 
 
 are chattels so far as being liable to fi. fa., 24, (y) 
 otherwise they are choses in action, '2i, (y) 
 
 BANKRUPT, 
 
 choses in action of, in whom vested, 176 
 
 condition as to the forfeiture of an annuity on the annuitant becoming, 
 
 205 
 legacy to, how payable, 478 
 where brother was, grant of administration given to sisters, 703 
 
798 INDEX. 
 
 BANKEUPTCY, 
 
 contentions as to fixtures between trustee in, and other claimants, 99 
 
 BASTARD. See Illbqitimate Childben. 
 dying intestate, 712, 713 
 
 BEES, 
 
 property in, 140 
 
 BENEFICE, 
 
 nest presentation to, is chattel real,' 80 
 
 and forms assets in hands of executor or administrator, 83 
 
 " presentative," 126, and see Advowson. 
 
 BEQUEST, 
 
 definition of, 1 
 
 early existence of power to make, in our law, 77 
 
 CoTivi pnmd fade considers, to be vested, 538 
 
 BILL IN EQUITY, 
 
 when necessary in administration suit, 45 
 term "Bill" abolished by Judicature Acts, 46, 129 (h) 
 term "of complaint," changed to " Statement of Claim," 47 
 toestablish Wills, 411 
 
 BILL OP SALE, 
 
 assignment of ship by, 35, 36 
 
 in connection with Fixtures, 649 (r) 
 
 BILL OF EXCHANGE. See also Pbomissoey Note. 
 
 good d. rth. c. where donor is holder, indorsee, or payee of, 13 
 
 not negotiable when specially indorsed,"16 (6) 
 
 payable to bearer or order, 17 
 
 may pass as donatio mortis causd when not indorsed to donee, 17, 19 
 
 indorsed in blank, 17, 159 
 
 passes by delivery, 23 
 
 chattel so far as subject tofi, fa., 24 [y) 
 
 otherwise cliose in action, id, 
 
 BIRDS. See Animals. 
 
 BISHOP, 
 
 ancient jurisdiction of, over intestate's property, 745 et seq. 
 
 BLANK SPACES, 
 
 in Wills, 322,509-512 
 
 BLIND, 
 
 testator when, under what circumstances must make his Will, 394 
 
 "BONA MOBJLIA," or " IMMOBILIA," 
 of Civil Law, 81 
 
 BONA NON ADMINISTRATA. See De honis non. 
 '•BONA NOTABILIA," 606, and [x) 
 
INDEX. 799 
 
 BOND, 
 
 . may operate as valid donatio mortis cauad, 8, 9, 17 
 evidence of specialty debt, 18 
 chattel so far as liable to fi. fa., 24 {y) 
 otherwise chose in action, id. 
 of administrator under Statute of Distributions, and under present 
 
 law, 748, 749 
 sureties to, of administrator, 749 
 discretion of judge as to, id. 
 administration cannot be dispensed with, id. 
 
 "BONORUM POSSESSIO," 
 
 in Civil Law, 66. See Heir. 
 
 BOOKS, 
 
 heir-looms, 115 
 
 will not pass under bequest of "household stuff," 154 
 
 nor of ' ' household furniture," id. 
 
 " BORN," or " TO BE BORN." See Children. 
 
 BOROUGH ENGLISH, 74. See Heir. 
 
 BOUNTY, 
 
 term defined, 51 
 
 BREACH OF PROMISE OF MARRIAGE, 
 
 executor, qua such, cannot sue or be sued for, 189 
 
 BREVE. See Letters. 
 
 BROTHERS AND SISTERS, 
 
 degrees of consanguinity between, 700 
 
 when entitled to grant of administration, 705 
 
 brother preferred to sister in grant of administration, 70?, 705 
 
 exception to above rule, 703 
 
 children of, alone entitled to share in intestate's property, 756, 757 
 
 all lineal descendants of intestate preferred to his, 757 
 
 of intestate, dying without children, 758 
 
 rank of, as claimants under an intestacy, 759 
 
 rights of, combined with those of other claimants under Stat. Dist. 
 
 760—762 
 See also Per Capita bt Pee Stirpes. 
 
 BUSINESS, 
 
 carried on by executor, 585 — 596. See Executok. 
 
 BUSINESS (Contentious), 672 el seq. 
 
800 • INDEX. 
 
 C^TERORVM, 
 
 grants of administration, 685 et seq. 
 
 distinction between, and grants save and except, 687 et seq. 
 
 CAMPBELL'S (LORD) ACT, 
 
 8 & 9 Vict. c. 93, 184—186 
 
 CANAL SHARES, 
 
 generally personal property, 160 {z) 
 except New River shares, id. 
 
 CANCELLATION, 
 
 mere, of legatee's name does not revoke gift, 3 i 2 
 of his signature by testator, 344, 347 
 must be executed to effect revocation, 348 
 
 CANON LAW, 667, 669 
 
 mode of coroputing degrees of consanguinity by, similar to that of the 
 Common Law, 700 
 
 CARRIAGES, 
 
 heir-looms by special custom, 119 
 
 CARRYING ON BUSINESS, 585—695, and see Exeoutok. 
 meaning of term, 686 (y) 
 
 CASH, 
 
 synonym of " money," 159, and see lIoNEy. 
 
 " at my banker's " will pass money and bank-notes at bankers, id. 
 
 CATTLE, 
 
 go to executor or administrator, 139 
 
 CAUSES (Probate), 
 
 how determined, 079 
 
 CAVEAT, » 
 
 described, 673, 674 ; Lodging and Warning caveat, ibid. 
 the first step in contentious business, 675 
 
 CESSATE GRANTS, 736-738. 
 
 distinction between, and grant de bonis, 737 
 
 CSSTUr QUE TRUST, 136 (i) 
 
 CESTUI QUE YIE,13i 
 
 CHAIN OF REPRESENTATION, 370, n. (p), 688 et seq. 
 
 CHAMPERTY, 
 
 defined, 180 {I) 
 
 CHANCERY, 
 
 procedure in, before Judicature Act by Bill, 45 
 under Jurisdiction Act, id.. 
 
INDEX. 801 
 
 CBA'SCEnr— continued. 
 
 order made in chambers, 45 
 
 where Bill necessary, id. 
 
 chief clerks, id. 47 
 
 effect of Judicature Act, 46 
 
 name of Court of, abolished, id. 
 
 certain classes of cases assigned to, id. 
 
 practice not changed in recovery of legacies, &c., id. 
 
 Kelt's Act, 48 
 
 still retains jurisdiction in matters of donatio mortis causa, id. 
 
 Court of Construction, 54, 557 
 
 cannot order fraudulent Will to be delivered up, 410 
 
 no original jurisdiction to establish Will, 411, 412 
 
 jury cases in Chancery Division H. C. J., id. 
 
 functions of, in regard to construction of Wills of personal property 
 
 now exercised by the H. C. J. in its Chancery Division, 557 
 never possessed authority for deciding on the validity of a Will, id. 
 Chancery Division H. C. J. cannot effectuate testamentary papers before 
 
 Probate, 558 ; nor can it examine a Will except to construe it while 
 
 Probate stands, id. 
 no relief afforded by, where Will is defectively executed, 559 
 jurisdiction of, compared with that of Probate Division as to Wills, 560 
 
 CHARGE. See Debt. 
 
 CHARITABLE USES, 
 
 bequest to, must come out of pure personalty, except where gift is made 
 to the Universities of Oxford and Cambridge, or to the schools of 
 Eton, Winchester, and Westminster, 490 and (s) 
 
 CHARTERS, 
 
 heir-looma, 113 
 
 CHATTELS, 
 
 meaning of word, 81 
 
 real and personal, id. and see titles. 
 
 animate and inanimate, 82, 145 {d), 137 
 
 interest, 82 
 
 incorporeal, id. 
 
 vegetable, id. 83 
 
 claim of, by outgoing from incoming tenant after expiration of term, 
 
 106 
 next presentation to a living is, 127, 128 
 grant of, to man and his heirs, 127 
 domestic animals, 138—143 
 word, in Will includes " goods,"145, and (d.) 
 " goods" and, general words in Will, 145 
 forfeiture of, for felony abolished, 122 (g), 395 
 imperfect enumeration of, in Will may pass all personalty, 494 («) 
 
 CHATTELS IN THE NATURE OF HEIR-LOOMS, 115. See Hbielooms. 
 
 3 F 
 
802 INDKX. 
 
 CHATTELS PERSONAL, 
 
 donatio mortis causd of such as are incapable of manual transference, 
 
 35, et seq. 
 emblements, 83 
 may be bequeathed, id. 
 
 devolve on executor and administrator, not on heir, id. 
 when annexed to freehold, id et seq. 
 things movable, 137 
 household goods, &o. id. 
 qualified property may ezist in, 148 
 bailments and pledges of, id. 
 goods distrained, 141 
 
 CHATTELS, EEAL, 
 
 personalty under Wills Act, 79 
 described, 80, 82 
 terms of years, id. 
 
 next presentation to benefice, id. 
 
 lands devised for, and until payment of, debts, id. 
 
 apples on tree, and tree itself, id. 
 
 title-deeds, id. 
 
 estate in land of limited duration, id. 
 
 if bequeathed, devolve on executor, 81 
 
 otherwise on administrator, id. 
 
 certainty of termination in estates necessary to constitute, id. 
 
 estates not of freehold, id. 
 
 may be bequeathed, 83 
 
 devolve on executor and administrator, not heir, id. 
 
 cannot be entailed by strict rule of law, 133 
 
 rule avoided by trusts, executory devises, &c., id. 
 
 leasehold estates for years are, 136 
 
 CHEQUE, 
 
 under certain circumstances allowed to be donatio mortis causd, 9 — 15 
 merely order to obtain sum of money, 10 
 
 held to be gift inter vivos in the case of Bromley v. Bruntcm, 11 
 should be acted on in drawer's lifetime, 12 
 retention of, by donee m. c, id. 
 gift of, m. I}., where the donor is the drawer, id. 
 Hhould be presented at once, id. 
 gift of m. c, of which donor is holder, 13 
 where gifts of, held good d. m. c, id. 
 
 by husband to wife indorsed " to buy Jier mourning," held an appoint- 
 ment, 14 
 where neither gift inlir vivos nor d. m. c, id. 
 passes by delivery, 23 
 chattel so far sa subject to fi. fa., 24 (y) 
 otherwise cJuise in action, id. 
 
INDEX. 803 
 
 CHILD, 
 
 en ventre sa mire when regarded aa a living child, 517 (a) 
 posthumous of half-blood, entitled to share with, of whole blood in 
 intestate's personalty, 754 {d) 
 
 CHILDREN'. See also Parent, Intestate, Illeqitimate Childeen, and see 
 
 Additional Cases at p. xxxix. 
 in primary sense word of purchase, 146 (h), 514 (5) 
 but intention may make it word of limitation, id. 
 primd facie, always means legitimate, 493 («) 
 "family" in a Will primarily means, 512 
 primary meaning of, 514, 527 (b) 
 included under " issue," id,, 641 (c) 
 instances of gifts to, under certain circumstances, 515 
 gift to, when none are in existence, id. 
 
 presumption of law as to a person having, at any time during life, 516 
 bequest to, and none in esse at testator's death, id. 
 how such take when they come into existence, id. 
 in a gift to, "born or to be born," these words will include all legitimate 
 
 and otherwise, 517 (Note). 
 word may be made nomen colleetivum, but " issue " is such itself, 550 [y) 
 of intestate, why preferred to their grandparents as administrators, 
 
 699, 704 
 rights of, of intestate, 750, 754 
 intestate leaving no, but grandchildren and great grandchildren 
 
 752, 753 
 of intestate provided for by settlement or portion by him, 764 
 provision for, by settlement of land under Stat. Dist., 774 
 representatives of advanced, must bring their parents' advancement into 
 
 hotchpot, 777 
 
 CHIMNEY-PIECES, 
 
 landlord's fixtures, 100 
 
 CHOSES IN ACTION, 
 
 may often pass as donationes moi-tis causd, 17 
 
 required by Judicature Act, 1873, to be assigned by writing, id., 131 {p) 
 
 177 
 bills, cheques, bonds, promissory notes, bank notes, 24 (y) 
 negotiable instrument, 25 
 personalty under Wills Act, 79 
 how assignable under Judicature Act, 1873, 131 (p) 
 may be assets, 135 
 
 will not pass in Will under "goods," 148 
 generally, 176, 177 (c) 
 present law concerning, 176 
 assignee of, takes subject to prior equities, id. 
 legal and equitable, 177 
 distinction no longer exists, id. 
 assignment of negotiable instruments, id. 
 Wills Act, 1838, 178 
 
 3 F 2 
 
80i K^DEX. 
 
 CHOSES IN ACTION— continued. 
 
 position of executor and administrator in regard to, 178 
 
 executor and administrator in loco testatoris with regard to, id. 
 
 legatee of, sues in name of executor, 179 
 
 Judicature Act of 1873, on, id. 
 
 view of equity as to assignment of, id. 
 
 transferee of, 180 
 
 Common Law concerning, id. 181 
 
 CHURCH. See Advowsojj. 
 
 CIRCUMVENTION, 403, see Fbaud. 
 
 CITATION, 
 
 to executor who has intermeddled with property without taking 
 
 probate, 465 
 described, 675 
 
 object and present use of, 676 
 place of, taken by present writ of summons, ihid. 
 affidavit to lead, 677 
 
 CIVIL LAW, 
 
 how term used in this book, 3 (Tc) 
 
 of dooiationes mortis causd, 41 (s) 
 
 " legm-e," 55. See Will. 
 
 meaning of, 668 
 
 mode of computing the degrees of consanguinity by, 700 
 
 followed in Enghsh law, with regard to personalty, id., 701 — 707 
 
 CLASS. See also the Additional Cases at p. xxxviii. 
 
 in a gift to, of children, those who are illegitimate must be personm 
 designatw, 493 
 
 gift to persons in a, distinguished from gift to individuals by name, 
 517 
 
 exposition of nature of gift to, 518 {Note), 520, 522 
 
 gift of realty to, 618 (d) 
 
 legacy given to, in general terms as tenants in common, 518, 778 
 
 may comprise all sorts of persons, 519 
 
 brothers and sisters, unbeneficed curates, executors and residuary legatees 
 constituting a, id. 
 
 relatives, annuitants, 521 
 
 effect of naming or not naming Statutes of Distribution in gifts to rela- 
 tives as a class, a, id. 
 
 . trustees form a, id. (Note) 
 
 where donees do not stand in the same relationship or degree, 522 
 
 ■where, to be ascertained at some particular period or otherwise, 530 
 
 gifts to, and in case of death of any of them before period of distribu- 
 tion, then to issue, 531 
 
 gift not to, but a person named, id. 
 
 when, is to .be ascertained, children of a deceased legatee take vested 
 interosts in parent's share, 532 
 
INDEX. 805 
 
 CL A.SS — continued. 
 
 gift to, living at death of tenant for life, 533 (q) 
 
 gift to, or individuals, with gift by substitution to issue or children of 
 
 those dying, 534—537 
 revocation of gift to one member of a class, 773 
 
 CLOTHES, 
 
 ohattela personal, 137 
 
 CODICIL, and see Additionai, Cases at p. Jtxxix. 
 
 eSeob of, in calling into operation rule of ejuadcM r/iiwris, 158 
 
 in English law, 263 
 
 any number of codioila allowed, id. 
 
 in Roman law, 264, 265 
 
 curious descriptions of, 255 
 
 made after Will in English law, id, 
 
 •effect of, in re-executing a Will, 266, 262 
 
 where letter established as, 256 (m) 
 
 may be on same paper with Will, or separate, 257 
 
 how, may give effect to unexecuted papers, id. 
 
 informal, id,, 258 
 
 true effect of, 258 
 
 may be independent of Will, but must be executed as such, 2i9, C60, 
 
 734 
 term, not now applicable to unattested papers, 260 
 not affirming intermediate papers, 265 
 cannot incorporate non-existing papers, id,, 263 
 general effect of, makes Will spealc as if executed at the date of itse'f, 
 
 266 
 where, not alone sufficient to incorporate unexecuted papers, id. 
 and Will makes one Will, and is always part of the testamentary disj o- 
 
 sition though not necessarily of the instrument itself, 269 
 written on separate or distinct papers, id,, 270 
 does not require new executor, 270 
 executors in, different from those in Will, id. 
 nuncupative, 272 
 
 revived by re-execution of Will, 361 
 may go with one Will when referring to another, id. 
 does not necessarily add anything to Will, id. 
 re-execution of, re-executes yfiW primA facie, 362, 3C4 
 revoked, may be revived by later paper, 365 
 of lost Will forthcoming, 423, 425, 734 
 separate operation of, when Will lost, 423, 424 
 lost, but Will found, 424, 734 
 
 giving authority to executor to adopt or reject it at pleasure, 432 
 administration until Will or, be found, 731 
 administration cum eodicillo annexo, 734 
 one of several codicils missing, id. (a) 
 revocation by, of gift to one of several joint tenants, 777 
 
 CO-ADMINISTRATOKS, See Admikistbators ; also 717 (ti) 
 
806 INDEX. 
 
 CO-EXECUTORS, 
 
 new, appointed with former executor, 666 
 
 any number of, may be appointed by testator, 716 
 
 may be for various objects, 717 
 
 all form one person in law, id. 
 
 COLLIGEND UM. See Ad Collioenda Bona. 
 
 COMMISSION OF LUNACY, 
 
 required to declare a person lunatic in Chancery, 726 
 
 COMMITTEE IN LUNACY, 
 
 his powers where his ward is an executor, 727 
 
 COMMON FOEM, 
 
 proving Will in, 671, 672 
 
 COMMON FORM BUSINESS, 671, 672, 673. See also Non-contentious 
 Business. 
 
 not affected by the Judicature Acts, 682 
 
 COMMON LAW, 
 
 power of devising and bequeathing under ancient, 19 
 latter privilege abolished by feudal system, id. 
 how affected by Statute of Uses, id. 
 
 and by 32 H. 8, c. 1, id. 
 limited jurisdiction in regard to legacies, &c., 44 
 meaning of term, 668 
 administrators at, called " executors for administration," or deputies, 
 
 693 
 mode of computing degrees of consanguinity by, similar to that of the 
 
 canon law, 700 
 these systems followed as to realty, id. 
 
 COMMORIENTES, 
 
 testator and legatee dying at same time, 481, 482, 739 
 no presumption of survivorship in cases of, 482, 739 
 practice of Probate Division H. C. J. in cases of, 740 
 
 COMPREHENSIVE EXPRESSION in WUl, 164, 167, 173 
 
 CONDITION PRECEDENT and SUBSEQUENT, 434, 436, and see Con- 
 ditional Legacies. 
 
 must not be against Public Policy, id, 
 when vague void, id. 
 
 how distinguished from limitation, 447, 448. See Limitation. 
 conditions and limitations as to forfeiture of an annuity on bankruptcy, 
 205 
 
 CONDITIONAL LEGACIES, 
 
 when to operate before vesting condition is precedent, 436 
 
 when gift to be devested, condition is svAsequmt, id. 
 general rules as to, where condition precedent, 266 n. (o), id. 
 testator's intention as to, id., 449 
 
INDEX. 807 
 
 CONDITIONAL lu'EGACIES— continued. 
 
 may be given on conditions unreasonable but not impossible, illegal, or 
 
 against Public Policy, 437 
 exceptions as to rules against impossible conditions, id., 438 
 given upon an uncertain event happening, 438 
 in regard to conditions subsequent, id. 
 conditions svhseqytent not favoured, id, 
 may be devested where there is a gift over, if condition subsequent bo 
 
 not illegal nor impossible, 439 
 residuary bequest is not a gift over, id., 442 
 given m teiTorem, 440 
 conditional limitation, id. 
 
 condition not to dispute the validity of a Will, id. 
 gift over in such cases must be to a stranger, 441 
 conditions in restraint of marriage, 441, 442. See Marhiaqe. 
 doctrine of cy-pris explained, 444, 445 
 given upon inconsistent and repugnant conditions, 445 
 difference between a condition and a limitation, 447, 448. See Limitation. 
 gift by Will to A., and, in case of his death, then to B., 539 
 
 CONDITIONAL LIMITATION, 440, and see previous title 
 
 CONDITIONAL OR CONTINGENT WILL, and see Additional Cases at 
 p. xxxix. 
 defined, 431 
 
 test for ascertaining whether Will is, 432 
 intention of testator gathered from circumstances, 433 
 made after another which is not, id. 
 not to be confounded with condition annexed to a gift, 434 
 
 CONSANGUINITY, 
 
 defined, 701, and described generally, 701, 702 
 
 how differs from affinity, id. 
 
 collateral, what it is, 701 
 
 how degrees of, reckoned with us, 700 — 702, 707 
 
 " person in whom the blood meets," 707 
 
 See, also, " Half-blood " and " Whole Blood." 
 
 CONSERVATORY, 655 (x) ; and see Fixtures. 
 
 CONSTRUCTION. See General Words ; Intention ; and Cobet oi' Con- 
 struction. 
 
 of words may vary with the progress of civilization, 170 
 
 instances of bequests requiring, 478, et seq. 
 
 general rule as to, of words in a Will, 509 
 
 of Wills determined by the Chancery Division H. C. J., 684 
 
 executor to take doubtful Will to High Court for, 512 {IVote) 
 
 CONTENTIOUS BUSINESS, 
 meaning of term, 671, 673 
 
 CONTINGENT ESTATES, 
 
 interests, possibilities, and expectancies, 180 
 
5^08 INDEX. 
 
 CONTINGENT LEGACIES, 479 et seq. 
 
 CONTINGENT OR CONDITIONAL WILL, 431 et seq. See Conditional 
 
 OR COHTINOENT WiLL. 
 
 CONTRACT, 
 
 between husband and wife, valid in equity, 20 
 
 right of executor or administrator to sue upon, of testator or intestate, 
 182, 183 
 
 made with executor who carries on his testator's business, 558 — 560 
 
 made with testator and with executor, importance of distinction be- 
 tween, 694 
 
 with administratorsi 696 e( ««?. 
 
 where, of testator incomplete at his death^-whethef proceeds of to pay 
 Probate Duty, 603 
 
 Contribution. Sie assets. 
 
 CONVERSION, 
 
 constructive, equitable doctrine as to, when applicable, 49 
 
 CONVICT, 
 
 meaning of term, 89.5 
 
 eannot alienate or charge his property, id. 
 
 wife of, fe'Tie sole for testamentary purposes, id, 
 
 property of, liable to costs of his prosecution, id. 
 
 custody of property of, during punishment of, id. 
 
 executor as, 459 
 
 administrator, 694 
 
 administrator of property of, during sentence. See 33 k 34 Vict. c. 23 
 
 COPY 
 
 of Will not admissible to probate, unless duly executed, 420 (i) 
 
 COPYRIGHT, 
 
 incorporeal chattel, 82 
 
 CORN, 
 
 growing, assets in hands of executor or administrator, 83. Sec Emele^ 
 
 MENTS. 
 
 chattel personal, 137 
 
 CORPORATION, 
 
 may be executor, 453 
 
 stik and aggregate defined, id. {k) 
 
 CORPSE, 
 
 any person may inter, without becoming executor de son tmi, 467 
 
 COUNTY COURT, 
 
 jurisdiction of, in administration, 637—639, 682, id. n. (c), 683 
 powers of registrar of, in certain oases of administration, 637—639 
 
 COURT OP ARCHES, 665, 666 
 
 COURT OF CONSTRUCTION. Sie CHanMrYj Equity. 
 
INDEX. 809 
 
 COURT OF PROBATE. See Probate Division H. C. J. 
 instituted in 1857 
 iurisdiotion of, transferred to High Court of Justice in 1873, 666 
 
 COURT OF RECORD, 
 
 meaning of term, 471 
 
 Court of Probate was, 667 
 COUSINS, 
 
 meaning of word, 544 
 
 first cousin or cousin-german, id. 
 
 first cousin once removed, id. 
 
 second cousin, id., 545 
 
 instances of construction of word, id. 
 
 table illustrating relationship of, 645 
 
 degrees of relationship between, 702 
 
 COVENANT, 
 
 executor may sue for breaches of, 190, 191, 192 
 
 COVENANT TO RUN WITH LAND, 190 
 exeoator suing on, id., 192 
 
 COVERTURE, 
 
 defined, 19 (e) 
 
 COWS, 
 
 chattels personal, 82 
 
 CRANWORTH'S (LORD) ACT, 23 & 24 Vict. o. 145. See under StatdteS. 
 
 CREDITOR, 
 
 rights of, different to those of voluntary donee, 1 1 
 
 does not pay legacy duty on bequest to pay testator's debts to him, 50 
 
 seeus, if left to pay another's debts, 51 
 
 appointed, is debtor's executor or administrator, 228 
 
 may attest Will without losing debt, 329 
 
 grant of administration to, 710, 711 
 
 also next-of-kin, 710 
 
 CREDITS, 
 
 personalty under 'Wills Act, 79, 223 
 
 olso debts, 223 
 
 meaning of term, in Wills Act, 1838, 231, 232 
 
 CRIMINAL LAW, 
 
 as to Wills fraudulently destroyed, cancelled, or concealed, 428 
 
 CROSS REMAINDERS OR LIMITATIONS, 646--549 
 
 CROWN, 
 
 right of, to administer intestate bastard's effects, 712, 713 
 
 CUMULATIVE LEGACIES, 
 
 called also accumulative and repeated, 486 
 
 described, id. 
 
 where gift is apedfio, legacy ■primdfade not, id. 
 
 general legacies of different amounts in iame instrument, 487 
 
810 INDEX. 
 
 CUMULATIVE L^aXCmS— continued. 
 
 general legacies of dififerent amounts by separate panels, 487 
 
 gift by Will and repeated in successive codicils, id,, 490 
 
 primd fade presumption in favour of legatee in these cases rebuttable, 
 
 488 
 function of Probate Division H. C. J. as to, id. 
 
 are the converse of siitoiwionai, id., 491. See StJBSTiTUTED Legacies. 
 legacies of different amounts in distinct papers, 489 
 legacy given dmplimter and otherwise, id., 490 
 two legacies to same charity, id., 491 
 doctrine of ejusdem genei-is concerning, id, 
 subject generally to the incidents of the original gift, 491, 492 
 
 CUSTOM, 
 
 in favour of removing trade-fixtures, 102 
 
 heir-looms descend by, 113, 114, 119. See Heir-Looms. 
 
 CT-PBSS, 
 
 explanation of doctrine, 444, 445 
 
 most commonly applied to the construction of devises and charitable 
 bequests, id. 
 
 D. 
 
 DAMAGE, 
 
 in removing fixtures, 103, and see Fixtures. 
 
 to testator's personal estate, ground of action by executor, 186 
 
 to testator's estate need not be averred to have accrued in testator's 
 
 lifetime, 189 
 resulting from breach of contract during and after testator's lifetime, 
 
 192 
 caused by testator whereby his own estate is benefited, 194 
 
 DE BONIS NON, 
 
 case of plaintiff suing as administrator, 596 (*), 597, 598 
 
 grant of, described, 689—692 
 
 when it issues, 691 
 
 rules concerning grant, 692 
 
 DE RATIONABILI PARTE BONORUM, 
 writ of, 77 
 
 DEAF AND DUMB, 
 
 testator -when, may make a Will, 393, 394 
 
 DEATH, 
 
 Will speaks from, of testator or testatrix, 379 
 
 disposing power over property acquired by testator before, 382 
 
 of two persons almost at same time, 481, 739, and see Commoeientes. 
 
 presumption of, after seven years' absence, 741 
 
INDEX. 811 
 
 DEATH — continued. 
 
 presumption aa to, conoerna the fact, not time of, 741, 742 
 moment of, of intestate, time at which his property vesta in person 
 entitled in distribution, 762 
 
 DEBT, 
 
 forgivenesa of, by donato mortis causd, 31 
 
 forgiveness of, tantamount to legacy, 50 
 
 bequest not subject to legacy duty where left to pay testator's, id. 
 
 seciis where left to pay another's, 51 
 
 ■is personalty under Wills Act, 79, 223 
 
 lands devised for and until payment of, are chattels real, 80 
 
 how assignable under Judicature Act, 1873, 131 (p) 
 
 priority of specialty, over debt by simple contract, abolished, id., 711 
 
 definition of, 224 
 
 by specialty distinguished from one by simple contract, id. , 472 
 
 where distinction observed, 225 (g) 
 
 release or extinguishment of, how effected, 226 
 
 every, bequeathable, id. 
 
 what will pass under term, subject to testator's directions, direct or 
 
 indirect, 227, 229 
 land sold for payment of, 229 
 
 real and personal property of testator both liable for, 230 
 due to the Crown, 470 
 of record, id. 
 
 notice of, should be given to executor or administrator, 473 
 order of payment of, by executors, &c., 466 — 476 
 employment of agent by executrix to collect, 577 
 authority of executor to compound testator's, 688 
 executor mortgaging land to pay, id. (i) 
 
 liability of purchaser or mortgagee to inquire as to payment of, id., ib. 
 testator charging his estate with payment of, 589, 590 
 duty of executor where, in excess of assets, 592 
 every, of intestate must be paid before his property is distributed, 749 
 
 DECEIT, 403, and see Fbaud. 
 
 DECLARATION, 
 
 in place of oath, 323, 600 (J). 
 
 as a pleading now called " statement of claim," 677, 678 
 
 DECLARATIONS, 
 
 made by testator, whether before or after the execution of his Will, 
 
 admissible as evidence of its contents, 427, 428 
 of testator admissible to rebut or uphold the presumption of revocation 
 of his Will, 732 
 
 DEEDS. See Donatio Mortis Causa. 
 
 of all kinds may operate as Wills, 312 
 
 DEER, 
 
 in park, held to be heir-Jooma, 113 
 property in, 140 
 
812 INDEX. 
 
 DEGREES OP KINDRED. See CoKSANauiNiir. 
 
 DELEGATES, 
 
 Court of, 665 
 
 DELIRIUM, 392 
 
 DELIVERY, 
 
 of possession, 3 
 
 of donatio mortis causd. See Donatio Mortis CadsI, 
 
 DELUSIONS, 387, 389. See Ihsanity. 
 
 DEPOSIT, 
 
 note of banker, 15 
 
 note of banker not a security for money, 161 
 
 or current account, money on, passes under " all moneys," 162, 163 
 
 DEPOSITORY, 
 
 for Wills of living persons, 429, 670 (A) 
 
 DEMONSTRATIVE LEGACIES, 
 described, 48^5 
 
 cause of important character of, 484 
 contrasted with sjjeci/ic, 485 
 not liable to ademption, id. 
 whether legacy is demonstrative or specific, determined by form of the 
 
 gift, id. 
 test for determining whether legacy is demonstrative or specific, id. 
 does not carry interest from testator's death, id. (e) 
 
 DESCENDANTS, 
 
 alone included in term " Representatives," under Statute of Distribu- 
 tions, 751 (s) 
 all lineal, preferred to ascendants and collaterals, 699, 757 
 
 DESCENT, 
 
 meaning of, 68 
 
 DESTRUCTION OF WILL, 
 
 meaning of, 344, and see LOST Will. 
 
 practice of Probate Division of the H. C. J. where alleged, 414 — 4Z6 
 
 with felonious intent, how punishable, 428 
 
 when fraudulent intent presumed, 733 
 
 whole or partial, 735 
 
 by tearing in pieces, but pieces afterwards joined, id. 
 
 by rats, id. 
 
 DEVASTA 7IT, 4C4, and (x) 
 
 DEVISAVIT VEL NON, 411, 412 
 
 DEVISE, 
 
 definition of, 56 
 
 no executor reijuired for, but if nominated will not invalidate Will, 
 67,63 
 
INDEX. S i 3 
 
 D EYISE— continued. 
 
 not entitled to probate, 64, 669, 670 
 
 even of property converted into personalty, 64, 670 
 
 in execution of Power, not entitled to probate, 67 
 
 of realty and personalty. See Mixed Wills. 
 DEVISEE, 
 
 definition of, 55, 70 
 
 or legatee comprehended under legatarius in Roman Law, 70 
 
 rights of, to things annexed to freehold, 84, 86, 646 — 648 
 
 DEVISOR, 
 
 definition of, 55, and see Will. 
 
 DIOCESAN COURTS, 665 
 
 DISPONEK, 69 
 
 DISPOSITION. See Succession ; also Will. 
 
 DISTRESS, 202, and see The Statute Law Revision Act, 1867 
 
 DISTRIBUTION, 
 
 period of, where gift is to persons and survivor or survivors, 628 
 
 of intestate's personal effects. See Iktestate. 
 
 "relations" and "family" mean "next-of-kin "under, G97, 708 
 
 order of, same as that of persons entitled to grant of administration, 
 
 704 (w) 
 no, of intestate's effects until a year after his death, 762 
 parties entitled in, have vested interests in their shares, id, 
 
 DISTRIBUTIONS (STATUTE OF) 
 founded on the Civil Law, 701 
 by whom drawn, id, 
 
 DIVIDENDS, 
 
 wiU not pass under words "money " or " ready-money," 163 
 on testator's stock payable to executor, 214 
 
 DOCUMENTS, 
 
 relating to personalty go to executor, 119 (r) 
 
 DOGS, 
 
 not chattels at Common Law, 138 
 stealing, punishment of, id. 139 
 
 DOMESTIC FIXTURES, 99, 110, etseq. See Fixtures. 
 
 DOMICILE, 
 
 definition and tests of, 233 
 
 doctrine of, examined, 234, 235 
 
 animus et factum necessary to create, 236 
 
 of origin, choice or acquisition, 237 
 
 questions of, distinct from those of naturalization and allegiance, id, 
 
 no one can be without, 238 
 
 of origin and choice, how respectively created, id-. 
 
 change of, how effected, id. 
 
814 INDEX. 
 
 D01AICILE— continued. 
 
 abandonment of, 239 
 
 intention, 239 
 
 actual residence required to make new, id. 
 
 of wife, same as of husband, id. 
 
 foreign, id. 
 
 of divorced woman, 240 ; and deserted by husband, id. 
 
 residence abroad of public officer, id. 
 
 exists for commercial, matrimonial or testamentary purposes, 242 
 
 governing maxims of public law on, id. 
 
 maxims, mdbilia seqmintur personam, immobilia seqv/imtur situm, id^. , 243 
 
 WiU of personalty must be made according to the law of the country of, 
 
 of testator at death, 244 
 testator's, at the time of making of his Will, 245 t 
 
 change of, by testator does not revoke WUl, id. 
 statute on, 24 & 25 Vict. o. 114, does not invalidate previously valid 
 
 Wills, id. 
 only applies to persons dying after August 6th, 1861, id. 
 effect of statute, 246 
 
 Court of country must administer and test its effects, id. 
 also decides questions of testacy or intestacy, 247 
 Foreign Court, how far its judgments binding on ours in questions of, 249 
 change of, in trcmsitu, 260 
 
 acquisition of, by British subjects dying abroad, 251 
 foreigners dying in Britain, 262 
 in connection with Legacy and Succession Duty, 610, 616 
 
 DOMINIUM, 
 
 in Civil Law, 66. See Heik. 
 
 DONATIO MORTIS OAUSi, 
 description of, 2 
 
 passes by mere delivery, id., 27-32 
 subject to Legacy Duty, 2, 21 
 not affected by Wills Act, 1838, 2 
 expression boiTOwedfrom Civil Law, 3 
 
 of mortgage deeds, bonds and policies of insurance on same footing, 5 
 may be made by deed, id. 
 
 onus proiandi where, alleged to be satisfied by legacy, 6 
 where deed retained by donor of, id. 
 liable in case of deficiency of donor's assets, id., 21 
 secu^ of gift inter vivos, 6 
 except in fraud, &c., id. 
 may be satisfied by legacy, id., 21, 33 
 subject to equitable doctrine of election, 7 
 ■whether, can be limited in remainder like a gift intei' vivos, id. 
 where delivery will not create, id. 
 of mortgage deeds, 8 
 where a cheque is, 9 — 15 
 must be made complete by donor, 12 
 retention of cheque by donee of, id. 
 
INDEX, 815 
 
 DONATIO MORTIS OAUSi— continued. 
 
 third person may receive, for donee, 14 (») 
 
 raises implied trust in donee for donor, id, 
 
 former doctrine of courts on, 16 
 
 modern doctrine, id. 
 
 nearly all negotiable instruments may now pass as, 17 
 
 not affected by Judicature Act, 1873, id. 
 
 in both law and equity, may take place between husband and wife, 19, 
 
 20,21 
 why, is valid at law, 20 
 distinguished from legacy, id. 
 revocable during donor's lifetime, 21, 22, 25 
 irrevocable by subsequent Will, 21 
 claimed against executor, id. , 48 
 recoverable by action in H. C. J., 22 
 executor or administrator's assent not necessary for, id. 
 donee takes, on donor's authority only, id. 
 cannot be proved in Probate Division H. C. J., id. 
 established by delivery and death of donor, id., 25 
 of negotiable instrument indorsed to bearer, 24 
 
 what passes by delivery of, of securities and negotiable instruments, id. 
 limited property of donee, 25 
 what donor parts with, id. 
 
 case of donee appropriating, before donor's death, 26 
 relation of donee to donor during latter's lifetime, id. 
 implies a trust that donee will redeliver if donor does not die, id, 
 donee cannot be punished as fraudulent trustee, 27 
 donor need not declare conditions, id. 
 manual delivery requisite where possible, id, 
 if made to agent, id., 29 
 agents in, 27—32, 37 
 donee should accept in proprid persond, 28 
 agent may receive to use of donee, 28 
 invalid if donor retains dominion, 29, 40 
 must be delivery of, to donee or some person for donee, 29 
 if donor tells agent to present, after his death, id. 
 if, placed in a drawer, &c., with directions in writing, id. 
 mere intention to make, insufficient, 30, 34 
 forgiveness of debt by, 30 — 32 
 antiquity of, in English law, 32 
 delivery of key, 33, and («), 37—39 
 exceptions as to rule of actual delivery, 34 et seg. 
 symbolic delivery of, id. 
 
 of chattels incapable of manual delivery, 35 et seq, 
 of ship by assignment, 35, 36 
 of carriages, horses, &c., 37 
 agent appointed by donor, id. 
 and without delivery, id, 
 of goods in warehouse by key, 39 
 receipts for stock, 40 
 
S16 INDEX. 
 
 DONATIO MORTIS CAPS A— continued. 
 evidence requisite for, 41 et seq. 
 number of witnesses requisite not prescribed, 42 
 proof of donor's last illness, &c., id. 
 presumptions of, id. 
 who may give evidence of, id., 43 
 donee may give evidence of, 42 
 distinguishedfrom nuncupative Will, id. 
 mode of recovering or defeating, by action, 44 
 jurisdiction of H. C. J. in matters oouoerning, 47, 48 
 Chancery Division retains jurisdiction, 48 
 
 DONATIO INTER VIVOS, S; and see Gift. 
 
 DONEE MORTIS OAVSA, 
 
 retention of cheque by, without presenting, 12 
 
 nature of property of, in d. m. c, 25 
 
 appropriating d, m. c, before donor's death, 26 
 
 precise relationship of, to donor, id. 
 
 cannot be punished as fraudulent trustee, 27 
 
 manual transference of gift to, by donor, id. 
 
 should receive gift m proprid persond, 28 
 
 agent for, and for donor, distinguished, id., 29 
 
 debt owing by, may be extinguished by d. m. u., 30 — 32 
 
 DONOR MORTIS GAUSA. See Donatio Mortis Causa; Donee Moktis 
 Causa. 
 
 DOORS, 
 
 windows, &c., annexed to freehold, 84, 110 
 
 cannot be bequeathed by tenant in tail or for life, 84 
 
 DOUBLE PORTIONS, 
 
 equity is not in favour of, 52 
 
 DOUBLE PROBATE, 739 
 
 DOVES, 
 
 in dovecote, heir-looms, 113 
 
 DRAFT, 
 
 of "Will, where probate granted of, 420—423, 733 
 
 DRUNKENNESS, 392, and see Insanity. 
 
 DUMB, 
 
 testator when, may make Will, 393 
 
 person who is, and also blind and deaf from birth cannot make Will, id. 
 
 DUPLICATE WILLS, 456 
 
 DURANTE ABSENTIA, 720, 723, 
 administration, 719 etseq. 
 
 DURANTE MINORITATE, 723—726, 
 administration, 719 et seq. 
 
INDEX. 817 
 
 DURANTE DEMENTIA, 726—728, 
 administration, 719 et seq. 
 
 DUTY. See Legacy Duty ; Succession Duty ; Probate Duty ; Adminis- 
 
 TBATION. 
 
 of parent to provide for child, 51 
 
 no legal, cast upon a parent to give anything to child by Will, 71, 389, 
 
 and (z) 
 of testator to provide for the payment of hie debts, 589 
 
 E. 
 
 ECCLESIASTICAL COURT, 
 
 jurisdiction of, in legacies, &c., abolished, 45, 664, 665 
 transferred to Court of Probate, 59 ()•), 666 
 
 ECCLESIASTICAL LAW, 
 
 our personal testamentary law, founded on, 669 
 
 EFFECTS, 
 
 "estate and effects" will pass realty in Will after bequest of pure per- 
 sonalty, 148 
 even if realty be not mentioned, 149 
 term strictly applicable only to personalty, 150 
 of wider signification than "goods," id. 
 
 value of fixtures may be recovered by, in action of trespass, id. 
 standing alone in Will will pass residuary personal estate, 151 
 secus " money resulting from sale of," id. 
 synonymous with " property " and "worldly substance,'' id. 
 influence of locality over construction of wprd, id. 
 ejasdem yeneris not applicable to, in residuary clause, 151 — 153 
 may pass realty by force of context in Will, 152 
 standing alone will pass only personalty, 153 
 "household effects" passes all property in house, 154 
 will pass stock-in-trade, 155 
 
 position of executor who has intermeddled with, of testator, 465 
 collecting the, of testator, 469 
 on what Probate Duty is payable, 608, 604 
 of intestate, when distributable, 762 
 
 EJVSDEM GENERIS, 
 
 effect of locality, &c., in general words in a bequest, 144, 147 
 " chattels," " goods," " goods and chattels," " et cmtera," 145 
 money is not, with furniture, id. 
 intention of testator, 146 
 
 two clauses in Will may receive different constructions, id. 
 not applicable to " effects " in residuary clause, 165, 156 
 applies to other instruments besides Wills, 167 
 
 doctrine of, in considering whether legacies are repeated or tuhstitv,ted, 
 491 
 
 3 a 
 
818 INDEX. 
 
 ELDEST SON, 
 
 entitled to participate in his intestate father's personalty, 763 
 
 ELECTION, 
 
 equitable doctrine of, applies to gifts mortis cansd, 7 
 
 EMBLEMENTS, 
 
 what, are, 83 
 
 term extends to annual artificial productions, id. 
 
 general rule concerning, 119 
 
 ordinarily go to personal representatives, id., 157 
 
 principle of law concerning, 119, 120 
 
 must be result of annual labour, 120 
 
 one crop only, id, 
 
 are a distinct property in law, id. 
 
 devisee prefeiTed to heir, id. — 123 
 
 tenant pvr autre vie entitled to, 121 
 
 cesser of tenancy must be by act of God or of law, id. 
 
 tenancy during widowhood, id. 
 
 for a certain period, id. 
 
 when lease depends on uncertain event, 122 
 
 how affected by 14 and 15 Vict. c. 25, id. 
 
 not affected by Agricultural Holdings Act, id. 
 
 when regarded by law as chattels, id. 
 
 may be distrained for rent, id. 
 
 may be taken under Ji. fa., id. 
 
 cannot be subjects of larceny before severance, id. 
 
 respective rights of husband and wife to, 123 
 
 grass, apples, hops, saffron, hemp, id. 
 
 tenant in fee may devise land to A. and, to B., id. 
 
 but, will not pass under general residuary bequest, 123, 124 
 
 specific bequest necessary to take, from devise of realty, 124 
 
 devisee as a rule takes, 157 
 
 EQUITY, 
 
 cannot perfect imperfect gift, 7, 8 
 
 may enforce parol declaration of trust, 8 
 
 present doctrine of, concerning doubtful gifts mortis causd, id. 
 
 doctrine of, concerning gifts between husband and wife, 20 
 
 distinction between suits in, and actions at law abolished by Judicature 
 
 Acts, 21 (r), 46 
 jurisdiction of, in legacies, &c., 44 
 under Jurisdiction Act, 1852, 45 
 not changed by Judicature Acts, 46 
 "looks upon that as done which ought to be done," 49 
 constructive conversion in, doctrine of, id. 
 Court of Construction, 54 
 
 EBASUEE. See Obutbrations and Interlineations. 
 
 ERKOR. Sec Misdesobiption fmd Misnomek. 
 
INDEX. 819 
 
 ESTATE, 
 
 limited, in land is chattiel real, 80 
 
 effect of word, in Will, 148 
 
 " and effects," will pass realty after bequest of pure personalty, id. 
 
 even if realty be not mentioned, 149 
 
 when real, will not pass by " AU Estate," &c., id. 
 
 in Will, signifies primd facie realty, 150 (() 
 
 ESTATE PUR AUTRE VIE, 
 definition of, 134 
 
 under old law on death of owner could be seized by "general occu- 
 pant," id. 
 could be disposed of by Will vmder Statute of Frauds, id. 
 intestacy of tenant, id. 
 limitation to tenant and his heirs, id. 
 heir of tenant called " special occupant," id. 
 effect of Wills Act, 1838, id. 
 may form personal assets, id. 
 when called quad entail, id. (c) 
 included in general devise of realty, 136 
 
 ESTATE TAIL, 
 
 heir to, called special heir, 134 (c). See Personal",Propbrtt. 
 
 JST CETERA, 
 
 force of, after particular words in Will, 145 
 
 EVIDENCE, 
 
 of donatio mortis caiisd. See Donatio Mobtis CausA. 
 
 when parties to suit compellable to give, 43 
 
 where admissible in case of revocation, 336, 339 
 
 secondary, admitted to establish lost Will, 417, 418 
 
 " secondary," meaning of, 418, 419 {x) 
 
 as to lost Wills, must be cogent and clear, 420 
 
 rules of, as to all questions of fact the same in Probate Division, 
 
 H. C. J., as in Common Law Divisions, id. 
 of execution of Will, id. 
 books of solicitor, in what cases, id. — 422 
 
 to show unfair dealing of person alleging Will to be destroyed, 424 
 declarations of testator before and after execution of WiU admissible as, 
 
 427, 428 
 testator's intention that gift shall not lapse, inadmissible as, 481 
 of survivorship wherfi persons die nearly at the same time, 482, 739 
 rules of, in regard to misdescription or misnomer of legatee, 505, 606 
 to establish identity and relationship of applicant for administration 
 
 under 36 & 37 Vict. i;. 52, 638 
 to prove Will in solemn form, 671, 675 
 probate is, of executor's right, 672, 674 
 
 EXCHEQUER BILLS, 
 defined, 18 (d) 
 
 3 G 2 
 
820 INDEX. 
 
 EXECUTION, 
 
 meaning of term, 260, 311 
 
 by signature or mark of testator, 313 and (6) 
 
 of Will by lunatics, non compoies, and intoxicated persons. See Insakity 
 
 and Lunatic. 
 of Will deferred, 892 
 
 EXECUTOR, See also Additional Cases at p. xxxviii. 
 
 assent of, to legacy, 1, 475, 476. See Assent. 
 
 Will without, may pass legacy, id. 
 
 donatio mortis causd claimed against, 21, 48 
 
 legacy claimed /rom, id. id, 
 
 assent of, not necessary to d. w,. c, 21, 22 
 
 when liable to action under old law, 21, 44 
 
 secus of legacy, 22, 475 ei seq. 
 
 how considered by Equity, 44 
 
 Equity procedure against, under Jurisdiction Act, 1852, 45 
 
 under Judicature Acts, 46 el seq. 
 
 not required for devise, 57, 64, 670 
 
 but if appointed, forms no objection to the instrument, 58 
 
 or ExECOTKix, defined, 59, 457 
 
 distinguished from " Administrator," 59, 4G3 
 
 derives title from Will, 59, 461 
 
 should, strictly speaking, always be named in Will ol personalty, 59, 60 ; 
 but omission to appoint, does not invalidate Will, 73 
 
 Will where no, is named, 60, 61 
 
 or, if named, is incapable of acting, id. 
 
 or if, dies before Probate, id, 
 
 then administrator cum testamento anncj.o is appointed, id., 744 
 
 where, if named, refuses to act, 61 
 
 when property of testator vests in, 63 
 
 Court may permit Will of realty to be proved like Will of personalty if 
 is named, 64 
 
 even if, renounces his rights under it, id. 
 
 but such Will is not entitled to Probate, id, ,670 
 
 renunciation of, does not destroy Will, 64, 574, 587, 690 
 
 old opinion on necessity of, for Will of personalty, 64, 65, 73 
 
 but now such Will requires no, to give it legal validity, 64, 73 
 
 how nomination of, affects Will, 64, 65 
 
 where, named in Will appointing no legatees, testator having no next-of- 
 kin, 65 
 
 where, not named, Will is, strictly speaking,, irregular, id, 
 
 and can only be effectuated in Probate Division, H. C. J., id, 
 
 similar to Koman hceres testamentarius, 72, 76 
 
 whatever may devolve by law on, is personalty, 79 
 
 and may be bequeathed as a legacy, 80 
 
 chattels real, it bequeathed, devolve on, 81 
 
 assets in hands of, what are, 83 
 
 rule where chattels are annexed to freehold, id, et seq, 
 
 rule between heir and, 84 (.r) 
 
INDEX. 821 
 
 EXECUTOR— continued. 
 
 " personal representatives," 93 
 
 " representatives," id. (g) 
 
 contentions as to fixtures between, and heir or reversioner, 98, 112 
 
 heir-loom to be held by, 116 
 
 v^hen, takes emblements, 119, 157 
 
 right of, of husband to emblements as against wife or heir, 123 
 
 next presentation to benefice, assets in hands of, 126 
 
 where heir presents to benefice, 127 
 
 all leases pass by law to, or administrator, 132, 1 33 
 
 lease for life, remainder to, assets in hands of, 135 
 
 lease by Will to A. for life, remainder to B., B. predeceasing, assets in 
 
 hands of, of B., id. 
 remainder in term of years, id. 
 may redeem testator's mortgage or pledge, id. 
 and, if with testator's money, they are assets, id. 
 may carry on testator's business, id. 
 
 may be assignee in law where testator assignee in deed, 136 
 trust estate, of which testator trustee, cannot form assets, id. 
 leasehold estates for years devolve on, id. 
 all domestic animals devolve on, 139 — 143. See Animals. 
 rights of, to fish confined or caught, 143 
 in loco testatoris with regard to choses in action, 178 
 right of, to sue and be sued, 182 — 194, 593 
 true ground of right of, to sue, 186, 187, 194 
 
 may sue for damage done by negligence of solicitor or other person, 187 
 cannot sue or be sued for breach of promise of marriage to testator, 189 
 right of, accrues whether cause of action arose in testator's life-time or 
 
 not, 193 
 power for, to retain his own debt, 228, 466 
 receiving present for his trouble, equal to a legatee, 380 
 who maybe, 457, 458 
 
 what acts, may perform before taking probate, 461, 462 
 cannot bequeath his testator's assets, 462 
 position of, how affected by probate, 463 
 claims by or against, or administrator, may now be joined with claims 
 
 by or against them personally, 464 
 intermeddling with testator's property, efieot of, 465 
 hesitating to take probate, id. 
 
 and administrator bound to pay debts in certain order, 466 
 order of payment described, «<?. — 475 
 payment of funeral expenses by, 467; inventory, 468; collecting 
 
 testator's efi'ects, 469 
 payment by, of debts of (1) an overseer of the poor, (2) a, duly appointed 
 
 officer of a Friendly Society, (3) a treasurer or collector to the Metro- 
 politan Palling Commissioners, 470 
 payment by, of debts where realty descends or is devised charged with, 
 
 472 
 notice to, by creditor of his debt, 473 
 statutory notice by, or administrator, to creditors, id. 
 
822 INDEX. 
 
 EXECUTOR— continued. 
 
 not entitled to imdieposed of residuary estate, 497 ; but is a trustee for 
 
 testator's next-of-kin, id. 
 right of, under 1 "W. 4, c. 40, explained, id. 
 whether, takes undisposed of residue is a question of intention, id. 
 not necessarily responsible for acts of co-executor, 521 (note) 
 appointment of, may be expressed or implied, absolute or qualified 
 
 exclusive or with others, 561, 567, 568, 716, 717 
 not necessafily trustee, and vice vend, 664 , 
 position of, and trustee distinguished, 562 — 566 
 how distinguished from a mere overseer or coadjutor, id. ( p) 
 in what respect, on same footing with trustee, 565 
 office of, and that of trustee may be combined by testator, id. 
 how Court distinguishes between, and trustee, 566 
 appointing a oo-, and co-trustee different, id. 
 surviving, empowered to appoint another to act with him, id. {w) 
 instituted and substituted, 568, 569 
 may renounce his office before taking probate, 573 
 but not after having interfered with deceased's affairs, id. 
 and administrator must make affidavit that he will rightly administer 
 
 effects, 574 
 of administrator, 584 
 
 carrying on business of deceased person by his directions, 585 
 meaning of " carrying on" a business, id. (y) , 
 
 dangerous position of, when carrying on business, 585, 586 
 when, remunerated for loss of time, 687 
 carrying on business may pay for assistance, id. 
 should exercise great caution under all circumstances when carrying on 
 
 business, id., 688 
 three courses open to, when directed to carry on business, 587 
 acting ultra vires, 589 
 not justified in carrying on business because testator has ordered his 
 
 debts to be paid, id. 
 must not employ more money in the business than was found there, 590 
 effecting an equitable mortgage, id. 
 carrying on business and securing profits, 591 
 
 duty of, when he finds his testator's debts in excess of his assets, 592 
 carying on business of a farmer, 593 
 employing trust funds in the business, id. (m) 
 when agent for co-executors, id. (o) 
 carrying on business liable for profits made as assets, 594 
 when, &c., may and must sue in representative capacity, id. (p), 595 
 continuing domestic establishment, 599 
 
 and othersmusttake stamped receipt for legacies chargeable withduty, 618 
 proper person to prove Will, 675, 715 
 may be compelled to prove in solemn form, id. 
 may still cite parties to see proceedings, 677 
 out of jurisdiction, 715, 719 
 limited executor takes limited probate, 717 
 any number of executors form one person in law, id. 
 
INDEX. 823 
 
 EXECUTOR— com«mMcd. 
 
 absence of, 719 et seq. 
 minority of, 723 
 lunacy of, 726 
 
 paper naming no, may yet be proved as a WiU, 744 
 EXECUTOR DE SON TORT, 465 
 
 any person may inter corpse, and perform other acts of necessity without 
 
 becoming, 467, 673 
 described, 570 
 
 acts which do or do not constitute, id., 671 
 ' question as to whether a person is, is of law, but the commission of 
 
 acts and their result, one of fact, 572 
 whether an executor proper and de son sort can exist together, id. 
 stranger taking goods before probate is, if after probate a trespassei-, id. 
 value of property intermeddled with immaterial, id. 
 person acting under colour of title is not, but one acting under colour 
 
 of wrongful administration is, 573 
 cannot be compelled to take letters of administration, id. (») 
 consequences of acting as, 574, 576 
 of partnership property, 575 
 
 cannot bring an action in right of the deceased, id. {d) 
 suing an, is not admitting him to be lawful executor, 57C 
 act of, when good against true representative, id. 
 •when acting as an agent, id., 680 
 
 how he may purge his wrong tefore action brought, 577 
 when sued cannot deny his position, 679 
 
 selling or giving goods to another does not make latter such, 581 
 executor of, does not continue the chain of representation, 682 
 taking lease of intestate lessee held not to make taker, id. (q) 
 where taker was held to be, id., ibid. 
 executor of, was not liable at law, 583 
 liable to pay legacy duty, 617 
 
 EXECUTOR ACCORDING TO THE TENOR. See also Additional Cases 
 at p. xxxviii. 
 
 described, 561 
 
 where trustee held to be, and not to be, 562 
 
 how trustee may become, 563 
 
 trustee with no duties to perform, id. 
 
 universal legatee is not, 567 
 EXECUTORY DEVISE OR BEQUEST, 
 
 meaning of, 133 {y), 460 (b), 461 
 
 may virtually create entail in terms of years or other personalty, 133 
 
 but only for life or lives in being, and twenty-one years after, id. 
 
 considered as a hmitation, not a condition, 460 
 
 distinction between the terms, 604 
 
 gift to children when none are in existence, 515 
 
 gift to A., and, he failing to have children, then to B., 542 
 
 to A. for life, with remainder to B., and, if he dies without children, 
 then to C, id. 
 
 rule of construction as to such gifts, id. 
 
824 INDEX. 
 
 EXECUTORY INTEREST, 115 (g) 
 
 by doctrine of, future interest may be created in personalty, 118 
 
 EXECUTORY TRUST, 116, 118 
 
 EXONERATION, 
 
 of laud from payment of debts, 223 
 
 F. 
 "FALSA DEMONSTBATIO." See Misdesoeiption, Misnomer, and see 
 Additional Cases at p. xxxviii. 
 
 FALSE IMPRISONMENT, 
 
 executor cannot bring an action for, on behalf of testator, 188 
 
 FAMILY, 
 
 primary meaning of, in bequest, 512 
 
 primarily signifies children, id. 
 
 may include relations ii not controlled by context, 513, 698 
 
 meaning of, in a devise, 513, and (m) 
 
 FATHER. See Heir, Testamentary Guardian, and Ihibstate. 
 
 FEAR. See Fraud. 
 
 FEE SIMPLE, 81 
 
 FEE TAIL FOR LIFE, 81 _ 
 
 FELO DE SE, 395 
 
 FELON, 
 
 Will of, 395. See also Convict. 
 may be executor, 458 — 461 
 
 FELONY, 
 
 forfeiture for, abolished, 122 (g), 395 
 
 FEME COYERT. See Married Woman, 
 
 FEME SOLE, 
 
 married woman with separate estate in same position as, with regard to 
 testamentary power over it, 371, and see Mabbied Woman 
 
 FIERI FACIAS, 
 
 emblements may be distrained under writ of, 122 
 when fixtures may be taken under writ of, 151 
 
 FISH, 
 
 in pond, held to be heir looms, 113 
 
 if at large, cannot be subjects of absolute property, 143 
 
 seciu if confined or caught in net, id. 
 
 FIXTURES, 
 
 natural and etymological meaning of, 88, 89 
 legal import of, 89 
 character of term unsatisfactory, id. 
 present meaning of, defined, id., 98 
 
INDEX. 825 
 
 FIXTURES —cmtmued. 
 
 " annexation " of, depends on circumstances of case, 90 
 
 degree of annexation, id. 
 
 object of annexation, id. 
 
 intention to make chattel part of freehold makes it such, id. 
 
 not removable if annexed to improve inheritance, 91 
 
 secus if for temporary purpose, id. 
 
 articles attached by their own weight, id. 
 
 only slightly affixed, id. 
 
 onus proiandi in such cases, id. 
 
 criterion of, depends upon whether or no they are part of land, &ov, id. 
 
 Roman Law of property in buildings, id. (y\> 
 
 mere annexation to freehold does not necessarily create, 92 
 
 annexation to freehold or to inferior holding distinguished, id., 93 
 
 origin of term, 93 
 
 affixiis of Roman Law, id. 
 
 quicquid planiatur solo, solo cedit, 94, 98 
 
 plantam ponere, 94 
 
 satio, cudificare, cedere, accessio, id. 
 
 ■whence " accessories " synonym of, id. 
 
 accessorium, applied to, 95 
 
 rules of our law derived from feudal law of " Waste," id. 
 
 connexion between waste and, id., 96 
 
 present law of, whence derived, 97 
 
 severed from freehold become once more chattels, id. 
 
 but right of removal does not affect their condition of realty, 98 
 
 contention as to, between landlord and tenant, 98, 105 
 
 between executor or administrator of tenants in fee simple, or in tail, 
 
 or for life, their heirs, reversioners, &c., 98, 112 
 between assignor and assignee, 98 
 or mortgagor and mortgagee, id. 
 or vendor and vendee, id. 
 or trustee in bankruptcy and claimants, 99 
 or outgoing and incoming tenants, id. 
 trade — , or trade and manufacturing, id., 101 et seq. 
 for enjoyment or profit of land, 'Jd 
 agricultural, id., 106 et aeq. 
 domestic, 99, 110 ei seq. 
 ornamental, id., id. 
 landlords', 99, 100 
 tenants', 99 
 
 rules of law varied as to different classes of, 100, 101 
 trade, when removable, 101 
 nurseryman's trees, id. 
 borders of box, 102 
 vats of a soap-boiler, id. 
 
 customs in favour of removing trade fixtures, id. 
 material injury must not be done in removing trade fixtures, IDS 
 tenant not liable for unavoidable injury, id. 
 limit to right to remove, id. 
 
826 INDEX. 
 
 FIXTURES— coMtmtMd 
 
 statutory rights of removal, id. 
 
 right to remove, secured by covenant, 104 
 
 tenant cannot remove, after expiration of term, id. 
 
 ejmdem generis doctrine of, id. Qm) 
 
 when tenant surrenders term before expiration, 104, 105 
 
 reasonable time for removing, 104 (Z) 
 
 rule of removal during term applicable to all, and all tenancies, 105 
 
 secus of mere chattels, id. 
 
 rule as to tenants of uncertain interests, id. 
 
 tenant attempting removal after expiration of holding is a trespasser, 
 
 106 
 claim of chattel by outgoing from incoming tenant after expiration of 
 
 term, id. 
 agricultural, general rule concerning, id. 
 effect of Act of 1851 on behalf of tenants, 107, 109 
 
 consent of landlord in writing, id., id. 
 
 when tenant may remove, 107 
 
 landlord may elect to take, 107 — 109 
 
 value to be settled by reference, ] 07 
 
 Act refers to agricultural tenancies combined with trade, d. 
 
 Act of 1876, id., 108 
 
 referee or umpire, 107 
 
 tenant may remove, for which he is not entitled to compensation, 108 
 
 also, he was not compelled to erect, id. 
 
 also, not substituted for any of the landlord's at time of demise, id. 
 
 steam-engine, id. 
 
 tenant must pay rent and satisfy obligations before removal, id. 
 
 must not damage buildings, id. 
 
 must pay for damage done, id. 
 
 must give a month's written notice, id. 
 
 what are considered domestic, 110 
 
 what ornamental, id. 
 
 general rule concerning, id. 
 
 material questions as to. Ill 
 
 general rule of removability of, id. 
 
 mode of annexation of, immaterial as between landlord and tenant, id. 
 secus as to time of removal, id. 
 
 when, may be taken under writ of, fi. fa., 151 
 
 when the contest for, lies between executor or administrator (a) of a 
 tenant in fee simple, his heir or devisee ; (b) of a tenant in tail his 
 successor, the reversioner or remainderman of the estate ; or (c) of a 
 tenant for life, the reversioner or remainderman, 639 — 683 
 
 FIjATTERT, 403, and see Fkaud. 
 
 FORCE, 
 
 constraint by, exercised on testator, 396, and see Fraud 
 
 FOREIGNER, 
 
 domiciled in England, 613, and see Domicile and LsQAoy Duty. 
 
INDEX. 827 
 
 FORFEITURE, 
 
 for treason and felony abolished, 122 (3) 
 
 FOWLS, 
 
 chattels personal, 82 
 
 FRAUD, FEAR, AND UNDUE INFLUENCE, 396 
 modes of fraud are infinite, id. 
 Story, Pothitr, and Antistius Laheo on, 397 
 dolus and fravs, id. 
 legal and moral, 398 
 rules of law on, 400 
 
 person taking benefit under Will prepared by him, id. 
 cannot be presumed, 401, 404 
 does not tiecessarily exist where solicitor, medical man, or other persons 
 
 prepare a Will from which they derive benefit, 401 
 to invalidate a Will on ground of, what must be shown, 402 
 fraud by concealment of Will, 402 
 onus prohandi in cases of, id., 403, 404 
 circumvention by deceit or flattery equivalent to constraint by force, 
 
 403 
 how pleaded in Probate Division, H. C. J„ 404 
 alleged, by Roman Catholic priest, id. 
 doctrine of equity on Wills and gifts inter vivos obtained by, 406, 407, 
 
 410 
 what defendant must show in cases of alleged, 408 
 persuasion and advice to testator do not constitute, id. 
 not constituted merely by legatee knowing contents of Will, id. 
 how persuasion, importunity, threats and violence may constitute, id. 
 undue influence may exist independently of fraud, 409 
 volition of testator must be overpowered to constitute, id. 
 moral command asserted and yielded to, id. 
 equity jurisdiction over Wills obtained by, id. 
 fraud on testator and fraud on next-of-kin distinguished, 410 
 fraud not affecting the whole Will, id. 
 fraud in Will of realty, 411 
 fraud in destroying, obhterating, or concealing Will, how punishable by 
 
 the criminal law, 428 
 
 FRAUDS, STATUTE OF, 29 Car. 2, c, 3, and see Statutes, 
 
 FREEHOLD, 
 
 estate of, what is, 81 
 
 fee simple, id. 
 
 fee tail for life, id. 
 
 pur OMtre vie, id. 
 
 things annexed to, 84, et seq. 
 
 cannot be bequeathed from heir, &c., of land, 84 
 
 distingnished from annexations to inferior holdings, 92, 93 
 
 any uncertain estate in lands, &c., is, 133 
 
828 INDEX. 
 
 FRIENDLY SOCIETY, 
 
 duty of executor of testator who was officer of, as to payment of de- 
 ceased's debts, 470 
 
 FEUIT, 
 
 wheu on tree chattel real, 80 
 when plucked chattel personal, 82 
 
 FUNERAL, 
 
 expenses of, have priority over all debts of a deceased person, 467 
 expenses of, when estate of deceased is solvent or insolvent, id. 
 
 FURNITURE, 
 
 assets in hands of executor or administrator, 83 
 
 what passes by Will under, 86 
 
 will not pass fixtures from, heir, &c., id. 
 
 fixed, id., 87 
 
 where testator is only a termor, 87 
 
 testator's intention of importance in regard to, id,, 88. See Fixtdhes. 
 
 heir-loom by special custom, 119 
 
 chattel personal, 137 
 
 general words, 144, rt seq. 
 
 money not ejusdem r/eneris y/ith, 145 
 
 G. 
 
 GAME, 
 
 laws, 141-143 
 
 definition of, 141, and see Animals, 
 
 GAVELKIND, 74. See Heir. 
 
 GENERAL AND OTHER WORDS. (See also under other titles) :— 
 " purchase," meaning of term, 84, 513 («) 
 rule of ejusdem generis, 144, 145 
 effect of locality, li4, 147 
 "moneys" will not pass chattels, 144 
 " chattels" will include "goods," 145 
 but "goods," may not include " chattels," id. and (d) 
 " chattels " will comprise things animate and inanimate, 145 [d) 
 " goods " includes only inanimate, id., ib. 
 " goods and chattels," 145 
 " et ccetera," id. 
 
 " goods" does not mean whole of personal estate, 146 
 intention of testator foundation of rule, id. 153 
 two clauses in Will may receive different constructions, 146 
 particular words in one gift do not influence subsequent bequest in 
 
 general terms, 147 
 one word followed by, id. 
 " goods " nomcn, gencralissimum, id. 
 
INDEX. 829 
 
 GENERAL AND OTHER -WOmiS— continued. 
 "estate," 148 
 " property," id. 
 
 "household stuff" or "goods," id., 153-156 
 "household furniture," 148, 164 
 " furniture," 148 
 " eHeots," id., 150, 151 
 " movable goods," 148 
 "moneys," or "money," id. 
 " securities," id., 171 
 
 " estate and effects," will pass realty after bequest of pure personalty, id. 
 even if realty be not mentioned, 149 
 " property," also passes realty, id. 
 where realty will not pass by " All Estate," &o., &o. , id, 
 residue passing under " other property," 150 
 force of " property," id. 
 
 ' ' estate " in Will means primd fade realty, id. (i) 
 "effects," standing alone will pass residuary personal estate, 151, 153 
 seem " money resulting from sale of effects," 151 
 locality extended by " elsewhere," &c., id. 
 
 "effects," synonymous with " property" and " worldly substance," id. 
 ejasdem generis not applicable to "effects," in residuary clause, 151, 153 
 
 " effects " may pass realty by force of context in Will, 152 
 
 rule of construction of sense of testator's words, 153 
 
 " effects " standing alone passes only personalty, id. 
 
 "household effects," force of, 154 
 
 " all the rest," 156 
 
 held to pass realty, id. 
 
 "money," 160 
 
 when effect of term very comprehensive, 164, 167, 173 
 
 " railway shares," " railway stock," 169,170 
 
 " stock " applied to property in shares, 170 
 
 "debentures," 171 (?) 
 
 those connected with conditioks and limitations, namely, " upon 
 condition," "provided always," "so that," "with that intention," 
 "as long as," "up to," "so long," "it," "when," "so soon as," 
 &c., &c., 448, and (x) 
 
 " niece," 506 
 
 " family," 512, 513, and (m) 
 
 "issue," 513-515 
 
 "relations" held to mean next-of-kin, 513 
 
 " parent," the correlative of " issue," 514 
 
 "children," where synonymous and otherwise with "issue," id. (o), 
 522, 523, 541 (c), 642, 546, 547, as word of limitation, 554 
 
 " children," in its primary sense, a word of purchase, but convertible 
 into a word of limitation by context of Will, 614 (j) 
 
 " children," in a bequest, 515 et seq. 
 
 " children bom or to be born," 517 (note) 
 
 •• offspring," 623, 624, and («) 
 
 " survivor," 624, et seq., 548, 549 
 
830 INDEX. 
 
 GENERAL AND OTHER 'WOTtX>S—contimed. 
 " survivor," read as " other," 526 and {y) 
 " absolutely," vesting of executory gift over, 542, 543, 544 
 " cousins," 544—646 
 
 " children not necessarily nomen collectivum," 550 (x) 
 " children," primd facie, a word of limitation in a Will, 544, 550, 
 
 551 
 " issue " is tiomen collectivum, 650 (a) 
 " legal representatives," 663 
 limitation " mediate " and " immediate," id. (c) 
 " heirs," id. 
 
 " heirs of the body," id. 554 
 " heirs or heirs male," id. 
 " personal representatives," 556 and notes 
 
 GIFT. See alio under other titles. 
 
 inter vivos, definition of, 3 
 
 how, inter vivos may be made, id. 
 
 delivery of, id. 
 
 vrhen revocable and when not, 3 — 5 
 
 when it operates as a contract, 4 
 
 by deed inter vivos, id. 
 
 where not known to person to be benefitted, id. 
 
 similar in some respects to conveyance of realty, id. 
 
 difference between, inter vivos, and mortis causd, and legacies, 5 
 
 effect of using deed in making each species of, 5 
 
 inter vivos not subject to Legacy Duty, 6, but may be to Succession 
 Duty when a succession is intended, 610, 619, 620 
 
 secus of gift mortis causd and by Will, 6, 628 
 
 may be limited in remainder, except in certain cases, 7 
 
 voluntary, id. 
 
 imperfect, cannot be perfected by equity, id. 
 
 of things qwz ipso usu consumuntur, absolute, id. 
 
 of mortgage deeds, 8 
 
 between husband and wife void at Common Law, 1 
 
 but how affected by equity, 20 
 
 what necessary for, 41 
 
 by Will, naming no executor, is a legacy, 65, 73, 744 
 
 inter vivos when obtained by fraud, 406, 407 
 
 to children means gift to lawful issue, 493, unless there is a " neces- 
 sary " implication in Will to the contrary, id. and (c) 
 
 to executor of residue must plainly appear in Will, 497 
 
 (1) of personalty to A. and his heirs or the heirs of his body, 478, 
 
 553, 554 
 
 (2) a similar, to the " children of B." and he has no child, or one 
 
 child, or children, 515 
 
 (3) to the " children of B. who shall be living at my death," and B. 
 
 has two, his wife being also enceinte, id. 617 
 
 (4) to B. and his children, 516, 622 
 
INDEX. 831 
 
 GIFT— contimed. 
 
 (6) to B. for life with remainder to C. absolutely, and, in case C. dies 
 under age, or unmarried, or without a child, then to D. , 
 615, 540 
 
 (6) to A. and, if he shall die, then to B, 540 
 
 (7) to A. and, if he shall die without leaving a child, then to B., id. 
 to a class, 517, et seq. ; and see Class. 
 
 to unborn children, 517 (note) 
 
 (8) to A. and B. and the issue of their bodies lawfully begotten, 
 
 541 (e) 
 
 (9) to A. and, in failure of issue, or if he should die without itsue, 
 
 then to B, id., Und 
 how word " absolutely " is construed in gifts like (5), 543, 544 
 by cross limitations or remainders, 546-548 
 rule in Wild's case, 549, et seq. 
 " immediate," 650 (x) 
 rule in Shelley's case, 552, 553 
 to " A. his executors, &o.," 553 
 to "A. and his legal representatives," id. 
 to "A. for life, his executors, &o.," id. 
 to " A. and his issue, and in default over," id. 
 to A. for life, and after his death to his heirs or heir male, id 
 all confer on A. the absolute interest. 
 
 GIFT OVER, 439, and see Conditional Legacies. 
 residuary bequest is not, id. 
 
 importance of, where conditions subsequent to take effect, 441 
 generally required to validate condition in restraint of marriage, 442 
 three exceptions to this rule, id. 
 in cases of survivorship, 529 
 where class is named, 531 
 in case of a preceding life estate, 540, et seq. 
 by cross-limitation or remainders, 646, et seq. 
 in default of issue, 553, 556 
 
 GOODS. {/See a&o General Words.) 
 personalty, under Wills Act, 79 
 distrained, 143 
 
 included under bequest of chattels, 145 {d) 
 but may not always include chattels under bequest of, id., ib. 
 term, only comprises things inanimate, id. 
 do not mean whole of personal estate, 146 
 is nomen generaUssvmwm, 147 
 
 general sense of term restrained by element of locality, id. 
 household, 143 
 movable, id. 
 synonymous with movables, 168 
 
 GOVERNMENT SECURITIES, 
 what they are, 18 (d) 
 
832 INDEX. 
 
 GRANDCHILDREN, 
 
 as lineal descendants preferred to collaterals as administrators, 699, 704 
 
 intestate leaving only, 751 
 
 intestate leaving, and great grandchildren, 752-754 
 
 GRANDFATHER, 
 
 of intestate preferred to brothers and sisters, 699, 700 
 
 GRASS, 
 
 when cut, chattel personal, 83 
 
 not an emblement, id., 123 
 
 ■when cut and secured, assets in hands of executor or administrator, 83 
 
 GREAT-GRANDCHILDREN, 
 
 rank of, as parties entitled to administer to intestate, 704, 769 
 intestate leaving, and grandchildren, 752-754 
 
 GUARDIAN. See also Testamentary Guakdian and Infant. 
 how every, regarded in law of England, 311 
 objects for which, appointed, id. 
 ad litem, how distinguished from " next friend," id. 
 durante minoritate executoris, 723 
 High Court appoints, to infant, id. 
 of minor appointed by himself, id., 726 
 administration to, for several persons under age, 724 
 three guardians only appointed, id. 
 rules of Court concerning, 726 
 
 H. 
 
 H.EREDITAS, 66, IJ.MRES, 70, and sec Heik. 
 
 HALF-BLOOD, 
 
 persons of, admitted to administer equally with one of whole blood, 706 
 
 brother of, excludes uncle of whole, id. 
 
 persons of, recognised in the descent of realty, 707 
 
 meaning of expression, id. (o) 
 
 contest for administration between two persons of, and one of whole 
 blood, 707 
 
 posthumous child of, entitled to share in personalty equally with post- 
 humous child of whole blood, 754 (d) 
 
 HALLUCINATIONS, 
 
 connected with religion, 386 ()i), and see Delusions and Ins4Nitt. 
 
 HANDWRITING, 
 
 Will need not be in testator's own, 313 
 
 Will when wholly in testator's own, called a holograph Will, id. 
 
 signature of testator need not be in, 313, 330 
 
 nor that of witnesses, id. 
 
 Will in, of legatee does not necessarily make legacy void, 329 
 
INDEX. 833 
 
 HANDWRITING-con«wme(^. 
 
 in Will may be deciphered by means of chemical agents, magnifying 
 
 glasses, &c., 347 
 entry by solicitor in his ledger, in his own handwriting, of the execution 
 
 of a Will, 420 
 forging testator's, 428, 453, 454 
 
 HEIR, 
 
 meaning of, in Roman and English laws distinguished, 66, 75 
 
 in the Civil law, 66 
 
 Jicereditas, id. 
 
 succession, id. 
 
 tonorum possestio, id. 
 
 tmicapio, id. 
 
 prescription, id. 
 
 under feudal system only one person can be, id. 
 
 must be related in blood to ancestor, id, 
 
 three classes of, in Civil law, id. 
 
 hceredes necessarii, sui et necessarii, extranet, id. 
 
 in English law defined, 67 
 
 connected only with realty, id. 
 
 in personalty may be a sort of donee in remainder, id. 
 
 father may be heir apparent and ancestor of son, 68 
 
 conversely son of father, id. 
 
 can alone take realty by descent, 69 
 
 Jwsres f actus, Jiceres natus, improper terms in English law, 70 
 
 term " devisee " represents the above words, id. 
 
 distinction between, and " legatary," id. 
 
 " God alone, not man, can make an," id., 71 
 
 devisee and legatee included under "assign," 70 
 
 appointed in Civil Law, id., 7], 75 
 
 " no one can be the, of a living person," 70 
 
 other modes of describing in English law, id., 71 
 
 father bound to leave son one-fourth of property by Civil law, 71 
 
 common notion of " cutting off heir with a shilling," id. 
 
 heir not appointed in English law, id. 
 
 suns JuKi'es took on intestacy, id. 
 
 hceres propinquns, remotus, astrarius, 71 (note) teslamentarius, ab 
 
 intestate, 72 
 hmres testamentarius similar to English executor, id., 75 
 under Roman Will number of heirs unlimited, 72 
 institution of, id. 
 
 when, of living person is mentioned in a Will, 73 
 apparent, 73 — 75 
 presumptive, id. 
 by devise, 73 
 special, 74 
 by custom, id., 355 
 general, 74 
 at law, id. 
 
 3 H 
 
834 INDEX. , 
 
 HEIR — coTVbiniMd. 
 
 gavelkind, 74 
 
 borough English, id. 
 
 no legacy in Civil law without, 76 
 
 duty of, under Koman law, id. 
 
 chattels real do not devolve on, under intestacy, 81 
 
 rule as to right of, where chattels are annexed to freehold, 83, 689 et seq. 
 
 when, is a, pu/rckaser, 84 
 
 things annexed to freehold cannot be bequeathed from, id., 640 et seq, 
 
 rule between, and executor, id. (x), 639, et seq. 
 
 cannot be deprived by general terms in Will of fixed appendages, 86, 
 86, 648 
 
 devisee preferred to, in respect of emblements, 120, 646 
 
 advowBon in fee, real assets in hands of, 126 and (t) 
 
 where, presents to benefice, 127 
 
 of tenant pur auire vie called " special occupant," 134 
 
 of estate tail called " special heir," id. 
 
 right of, to animals, 143, and see Akimals. 
 
 in mixed gift of realty and personalty, term construed in strict legal 
 sense, 200 
 
 " customary," 355 and (k) 
 
 gift of personalty to "A. and the heirs of his body," gives absolute in- 
 terest, 478, 523 
 
 term, a word of limitation, 553 
 
 heir-at-law of intestate entitled to participate in his personalty, 763 
 
 HEIR-LOOMS, 
 
 definition of, 112, 113 
 
 descend by custom, 113, 114, 119 
 
 derivation of, 113 
 
 deer in park, id, 
 
 fish in pond, id. 
 
 rabbits in warren, id. 
 
 doves in dovecote, id. 
 
 charters, id., 118 
 
 title deeds, &o., with chests containing them, id. id. 
 
 crown jewels, 114 
 
 bequest of, from heir void, id. 
 
 inheritable quality of, id. 
 
 chattels in the nature of, 115 
 
 pictures, books, plate, &c., id, 
 
 may form subjects of strict settlement, id. 
 
 no need for limitation of realty to guide such limitations of personalty, 
 
 116 
 general rule of law that personalty cannot be entailed, id. 
 how to avert this principle, 117 
 
 insertion of express condition in Will or settlement, id. 
 no difference between construction of executory trust by Will or by 
 
 deed, 118 
 future interests may be created in personalty of all kinds, id. 
 
INDEX. 835 
 
 HEIR-LOOMS— contimed. 
 coUar of S.S., 118 
 ancient portraits, id. 
 monument, id. 
 pawned title-deeds. 119 
 carriages, id. 
 furniture, id. 
 
 HEMP, 
 
 pertains to executor as emblements, 123 
 
 HEREDITAMENTS, 
 
 improper use of word in Will, 199 
 
 HOLOGRAPH WILL, 
 what it is, 156 
 by law of Scotland, 313 
 
 HOPS, 
 
 i£ planted, pertain to executor as emblements, 123 
 
 HORSE, 
 
 selling stolen, in market overt, 36 (a) 
 selling other, id. 
 
 and carriage, donatio mortis oausA of, 37 
 chattel personal, 82, 137 
 
 HOTCHPOT, 
 
 meaning of term, 764 
 
 bringing into, not compulsory at all events, 765, 776 
 
 doctrine of, applies to both realty and personalty, id. (c) 
 
 bringing into, value of a provision for the wife and children of a child's 
 
 marriage, 774 («) 
 advancement by annuity to be brought into, 776 
 doctrine of, affects property only acquired by gift from father, id. 
 doctrine of, founded on maxim " equaUty is equity," id. 
 rule of, does not deprive a child of gift against his will, id. 
 representatives of advanced children must bring advancement into, 777 
 statutory provision as to, appKes only to cases of total intestacy, id. 
 
 HOUSE OF LORDS, 
 
 appeal lies from Court of Appeal to, in probate matters, Note B. in 
 
 Appendix 
 former practice respecting appeals to, 64, 666 
 
 HOUSEHOLD, 
 
 "stuff" or "goods," 148, 153—156 
 " goods " passes things of permanent nature, 153, 154 
 " goods " equal in main to, " stuff," 154 
 rule as to excluding things qwe ipso usu consumuntw, id. 
 also books, cattle, choses m action, &c., id. 
 unless contrary intention shown by context of Will, id. 
 "effects," succeeding " furniture " includes aK property in house, id., 
 155 
 
 3 H 2 
 
836 INDEX. 
 
 HOUSEHOLD— coB«jji!icd. 
 
 " furniture " passes chattels of convenience to householder and of orna- 
 ment to house, 154 
 e.g. plate, linen, pictures, &o., id. 
 but not books, id. 
 nor personal ornaments, 155 
 nor things qucs ipso usu consumuntur, id. 
 
 "goods," "stutP," or " furniture " will not pass stock-in-trade, id. 
 but " effects " will, id. 
 
 HUSBAND AND WIFE, 
 
 donationes mortis causd valid between, at law and in equity, 19, 20 
 
 gifts inter vivos between, void at common law, 19 
 
 and how affected by Statute of Uses and by 32 H. 8, u. 1, id. 
 
 are, by the general rule of law, one person, id. 
 
 doctrine of equity concerning gifts between, 20 
 
 also contracts, id. 
 
 respective rights of, to emblements, 123 
 
 when regarded in equity as separate persons, 368 
 
 mere general license of husband to wife's Will useless, 378 
 
 husband's assent to wife's Will, meaning of, id. 
 
 validity Of wife's Will ef tinguished by death of husband, id. 
 
 assent of husband to wife's Will dies with him, 381 
 
 husband should know contents of wife's Will, 382 
 
 protection order of wife against husband, 384, 697 
 
 husband bequeathing property from wife to another woman, 398 
 
 both dying together in the same calamity, 481, 740, 741, and see CoM- 
 
 MOBIENTES. 
 
 right of widow to administer to deceased husband, 693, 695 
 
 right of husband to administer to wife, 696, 704 
 
 this right may be set aside in certain cases, 696, 697 
 
 not next-of-kin to each other, 697, and (j) ; but they may be made to 
 
 occupy that position under a Will, 698 
 bequest by either to his or her next-of-kin, 697 (?), 70S 
 
 IDIOT. See Lunatic. 
 
 ILLBGITIMATE CHILDREN, 
 
 of a testator are strangers to him, 7 {y) 
 
 who are, 75, (note) 
 
 of marriage with deceased wife's sister are, id. 
 
 legacies to, 492 — 495 
 
 must be personoi designatce to take where gift is to a class, 493 
 
 sometimes take to carry out testator's intention, 494 {d) 
 
 provision by Will for future, valid, ibid. 
 
 included in a gift to " children born or to be born," 517 (note) 
 
 of intestate, do not share in property, 754 (tJ) 
 
INDEX. 837 
 
 ILLUSORY APPOINTMENTS, 293 et seq. Ajxd see Power. 
 
 IMPERFECT PAPERS. Sa- also Draft and Instruotiqks por Will. 
 when may be incorporated with Will, 257 
 were admitted to Probate before 1838, 453 
 secus, since then, id. 
 
 IMPLIED LEGACIES, 
 
 term means those given by necessary implication, 492 
 
 definition of "necessary implication," i(i. 
 
 questions as to, often arise with regard to the rights of illegitimate 
 
 children, id. 
 under other circumstances, 494 
 to wife from husband, id, 
 not created by erroneous recital in codicil of gift in Will, 495 
 
 IMPORTUNITY, 408, and see Fraud. 
 
 IMPRISONMENT. See Convict. 
 
 "INCIDENT" 
 
 in law, meaning of, 86 
 
 of a house, id. 
 
 must be enumerated in Will to pass incidents from heir, id, 
 
 INCONSISTENT LEGACIES, 
 called also repugnant, 495 
 description of, id. 
 rule as to construction of, 496 
 construction of clauses almost incomprehensible, id. 
 
 INDEMNITY, 
 
 clause of, in Will on behalf of executors directed to carry on testator's 
 business, 587 
 
 INDENTURE 
 
 and deed poU may operate as Wills, 312 
 
 INDIA, 
 
 domicile in, 234 et seq., and see Domicile. 
 
 bill of exchange in transitu from, to England liable to Probate Duty, 
 
 604 
 testator's government-stock of, regarded as assets liable to Probate 
 
 Duty, 606 
 
 INFANCY 
 
 terminates day before person comes of full age, 867 
 
 INFANT. See also Testamentary Guardian. 
 
 custody, education and wardship of, governed by rules of Equity, 304, 
 
 et seq. 
 cannot make a Will, 367 
 
 except when he is a sailor or soldier on actual service, id. 
 may be executor, 458, 723, 725 
 legacy to, how payable, 477 
 
838 INDEX. 
 
 INFANT— coniiimed. 
 
 distinguished from mmor in Civil law, 723 
 
 guardian to, in litigation in Probate Division appointed by President, 
 
 id. 
 secus to a minor, id., 726 
 
 INFLUENCE, 
 
 legal meaning of, in testamentary matters, 404. See also Fbaud. 
 
 INOFFICIOUS WILL, 
 meaning of, 389 (s) 
 
 INSANITY, 
 
 preaumption of, by incoherent Will, 61, 386, 38G 
 
 lucid interval during, 385 
 
 nature of questions as to, in testamentary matters, 386 
 
 test of, id, 
 
 function of Probate Division, H. C. J., in determining questions of, id., 
 
 387 
 what is meant by a "sound and disposing mind" — where insanity is 
 
 alleged, 387 
 delusions must be shown to have influenced terms of Will, id, 
 insane delusions, id., 389 
 partial, 388, 389 ' 
 
 temporary and permanent delusions, 389 
 mere inofficious Will not conclusive as to, id. 
 difficulty of distinguishing perfect, from partial, 390 
 weak understanding, 391 
 
 effect of intoxication on testamentary acts, 392 
 intoxicated persons when considered insane during drunkenness, id. 
 
 INSOLVENT. See Bankrupt. 
 
 INSTRUCTIONS FOR WILL, 
 
 useless for pinrposes of evidence, unless duly executed, 337 (c), 453, 505 
 solicitor not allowed to give evidence as to, 505 
 
 INSURANCE. See Policy of Insukanoi:. 
 
 INTENTION, 
 
 of donor immaterial in gifts mortis causd of things quce ipso nsu cmi- 
 summitw, 30 — 32 
 
 rule for construction of sense of testator's words, 153 
 
 as to use of word " moneys " in Wills, 164 
 
 inferred from significant facts, 166 
 
 as to marking out residue, 169 
 
 of testator paramount, 173, 497, 499 
 
 cannot be shewn by unexecuted instructions for a Will, 337 (c), 453, 
 505 
 
 where, subordinated to rules of construction, 499—501, 535, 636 
 
 evidence of solicitor as to his instructions, inadmissible to show tes- 
 tator's intentions, 606 
 
 rules of evidence where, it is sought to shew, in cases of misnomer or 
 miedescription, 505 et scq. 
 
INDEX. 839 
 
 INTENTION— ooreiOTKerf. 
 
 construction of words, 4i»i older to effectuate, 609 
 
 introduction of words, for same purpose, SIO — 512. See also General 
 
 WOKDS. 
 
 to benefit a person known by testator to be dead, 533 
 INTEREST. See Vested and "Vested Iktebest. 
 
 INTERLINEATIONS, 345 et seq. See also Additional Casks at p. xxxix. 
 I must be duly executed, 347 
 
 INTERPOLATION 
 
 of words in a Will by Court, 509—512 
 
 INTERROGATORIES, 
 
 Will made by, 451—453 
 
 INTESTACY, 60 et seq., 692. See also Intestate. 
 quasi, 61, 744, 745 
 auccessio ab intestato, 68, 71 
 
 creditors in a case of, becoming executors de son tort, 680 
 of bastard, 712, 713 
 as to residue of personalty, 744 
 history of the law as to, 745 — 748 
 
 INTESTATE, 
 
 definition of, 60 
 
 when person leaving a paper intended by him to be his Will may yet 
 
 die intestate, id. 
 if WiU be not legally executed, id. 
 if not signed in presence of witnesses, id., 61 
 if incoherently worded, 61 
 
 effect of Will declaring the maker of it to die intestate, id. 
 quasi intestacy, id. 
 
 in whom property of, rests before letters of administration, 62 
 . description of the statute for the relief of widows and children of, 
 
 where personal estate is of small value, 637, 638, 639 
 widow of, her right to administer his effects, 693, 695 
 husband of, his right to administer, 696, 704 See also Husband and 
 
 Wife. 
 next-of-kin of. See Next-oj-kin. 
 why ohUdreu of, preferred to parents of, 699, 704 
 lineal descendants of, preferred to all collaterals and ascendants, 699 
 bastard dying, 712, 713 
 
 distribution of property of, under Statute of Distributions, 749 
 rights of widow of, as to share of property, 750 
 rights of children of, id. 
 
 how absolute rights of children of, modified, id. {r) 
 See also Advancement, Portion, Children, Hotchpot, Widow. 
 where, dies leaving no children but grandchildren, 751 
 illegitimate children of, do not share in property of, 754 (d) 
 is the main subject of Statute of Distributions, 766, 767 
 
840 INDEX. 
 
 ITSTESTAJPE— continued. 
 
 mother of, entitled with children of deceased brothers and sisters, 
 
 756 (i) 
 leaving only great-grandson, 757 
 father and mother of, id., 758 
 
 father of, when entitled to the whole property of, 758 
 claimants to property of, classed, 759 
 table shewing the rights of parties claiming property of, 760 — 762 
 
 INVENTORY, 
 
 practice of maldng, by executor or administrator, 468, 469 
 exhibited by administrator pendente lite, and by receivers of real estate, 
 730 
 
 INVESTMENTS, 
 
 in what funds, should be made by trustees of trust money, 18 (d) 
 
 I. 0. U., 
 
 may pass as valid donatio mortis causa, 9, 18 
 evidence only of simple contract debt, 18, 32 (o) 
 not a security for money, 161 
 
 IPSO USU COmVMUNTUR, 154—156 
 gift of things qucs, absolute, 7 
 what things are not so considered, 7 (a) 
 
 ISSUE (I.) 
 
 primary meaning of word, 513, 514, 654 
 
 how restricted by context, 514 
 
 meaning of, limited when coupled with " child or children," id. 
 
 term read as " children," id. (o) 
 
 "parent," correlative of, 515 
 
 gift to " B. and his issue," or " his offspring issue or seed," 522 
 
 when no lapse where gift is to issue of testator, id. (p) 
 
 " offspring," when used simpUciter, is synonymous with, 523 
 
 " without having issue," means " without issue," 527 (6) 
 
 gift to A., and on failure of his issue to B., 541 (e) 
 
 gift to A., and if he should die without issue, then to B., ih., id. 
 
 gift to A. and B., and the issue of their bodies lawfully begotten, ib., id. 
 
 word, is itself nomen colleclivum ; " children," may be made such, 550 (j/) 
 
 primd facie, word of limitation, 554 
 
 ISSUE (II.) 
 
 duty of person on whom lies onvs prohandi in cases of fraud or undue 
 
 influence, 401, 406, 407 
 in Chancery Division, H. C. J., since Judicature Acts, is to be tried at 
 
 Westminster, Guildhall, or Assizes, 412, 679 
 who delivers, in probate actions, 679 
 time for delivering, id. 
 
INDEX. 841 
 
 J. 
 
 JEWELS, 
 
 Crown jewels, heir-looms, 114 
 
 limitation of realty needless for executory trust of family, 116 
 
 chattels personal, 137 
 
 JOINDER,! 
 
 claims by or against executor or administrator, qud such, now allowed 
 
 to be joined with those by or against him personally, 464 
 administrator when not joined as plaintiff in action for goods sold and 
 delivered, 587, 588 {h), 596 
 
 JOINT TENANTS, 
 gifts to, 504 {g) 
 when children take as, 516 
 cannot bequeath their share by Will, S21 {note) 
 residuary legatees are, 686 
 joint tenancy not favoured in law, 687 and id. (it) 
 
 JUDGE, 
 
 of the Probate Conrt, now styled President of the Probate, Divorce, and 
 Admiralty Division of the High Court of Justice, 63 (A), 667 and (m) 
 
 JUDGMENT, 
 
 verdict of jury in Probate Division of no avail before, 455 {p) 
 
 JUDICATURE ACTS, 
 
 distinction between actions at law and suits in equity abolished by, 
 
 21 (r) 
 terms " suit " and " bill " abolished by, 46 
 name "Court of Chancery," abolished by, id. 
 assignment of certain classes of causes to appropriate Divisions of 
 
 H. C. J., id. 
 old practice in administration not changed by, id. 
 ministerial officers of the Courts, how affected by, 47 
 have changed name " Court of Probate " to that of Probate, Divorce, 
 
 and Admiralty Division, H. C. J., 60 
 effect of, on joinder of claims by or against executors and administrators, 
 
 464 
 have transferred the jurisdiction of Court of Probate to the High Court 
 
 of Justice, 666 
 under, proceedings in Probate Division commence by entering caveat, 
 
 which is followed by writ of summons, 676, et sej. 
 have abolished citations as initiatory proceedings in probate matters, 67 ' 
 provide that rules of the Court of Probate are to be retained, 681 
 
 JUDICIAL SEPARATION, 
 
 a decree of, of married persons, gives wife power to make a Will, 384 
 
842 INDEX. 
 
 JURISDICTION, 
 
 of late Common law, H 
 
 of equity, id. 
 
 ecclesiastical, abolished, 45 
 
 equity procedure under Jurisdiction Act, 1852, id. 
 
 how affected by Judicature Acts, 46 et seq. 
 
 of H. C. J. in cases of donatio mortis causd, 47, 48 
 
 of H. C. J., its territorial limits, 721 
 
 JUS ACGRESOENDI. See Joint Tenants and Subvivobship. 
 
 K. 
 
 'SITS, See Next-of-Kin. 
 
 distinguished from "next-of-kin," 699 
 
 KING. See Sotbreion. 
 
 KEY, 
 
 passing of donatio mortis camd by delivery of, 33 et seq, 
 look and, annexed to freehold, 84 
 
 L. 
 
 LANDLORD AND TENANT, 
 
 contention as to fixtures between, 98 
 
 emblements, 122. See also Emblements. 
 
 rights of, in respect to game, 141 
 
 general rule as to irremovability of fixtures relaxed as between, 640 
 
 trade fixtures removable as between, 651 
 
 LANDLORD'S FIXTURES, 99, 100, and see Pixtokes. 
 
 LANGUAGE, 
 
 ambiguous in Will, extrinsic evidence to explain, 505, 506 
 whole of, of a Will to be considered in construing it, 510 
 
 LAPSED LEGACIES, 
 
 lapsed devise, primd facie falls into residue, 256 (o), 503 
 
 meaning of, 256 (o), 480 
 
 use of word " heirs," &c., &c., generally of no use to prevent gifts from 
 
 being, 480 et seq. 
 evidence inadmissible to show testator's intention as to, 481 
 deferring payment of legacies will not prevent them being, id. 
 specific provisions by testator against, id. 
 
 bequest to A. or his personal representatives may prevent a lapse, id. 
 where legatee is a trustee for another person, no lapse, id. 
 legatee directed to release debt and legatee dies in testator's life- 
 time, id. 
 devises, 482, 483 
 
INDEX. 843 
 
 LAPSED LEGACIES— coMiJmMed. 
 
 no lapse where devisee or legatee is a child or other issue of testator, 
 
 483 
 provision made by a testator to prevent, not readily assumed by Court 
 
 539 
 revocation of gift to one of several tenants in common causes intestacy 
 
 as to revoked share, 777 
 one of several tenants in common predeceasing testator causes intestacy 
 
 as to that share, 778 
 of an estate tail, 1 Vict., c. 26, ». 32, 787 
 LARCENY, 
 
 emblements before severance not subjects of, 122 
 Act of 1861 provides for the felonious concealment, destruction , sup- 
 pression, or stealing of Wills, 428 
 LAST WILL AND TESTAMENT, 
 import of the phrase, 333, 334 
 LAW, 
 
 distinction between actions at, and suits in equity abolished by Judica- 
 
 taxe Acts, 21 (r) 
 See Cahon Law, Civil Law, and Common Law. 
 LEASE, 
 
 for years, assets in hands of executor or administrator, 83 
 
 tenant cannot remove fixtures after expiration of, 104 
 
 meaning of term, 131 
 
 lessor and lessee defined, id., 132 
 
 why, is merely chattel interest, 132 
 
 under old law could only be for forty years, 132 
 
 now for any number of years, id. 
 
 yet, however long, of less importance than estate for life, id. 
 
 all terms for years same in contemplation of law, id, 
 
 of chattels, &c., id. 
 
 if, for certain period, is personalty and passes to executor, &o.. id., 133 
 
 when must be by deed, 132 (s) 
 
 for life, remainder to executors for term, assets in hands of executor, 
 
 135 
 by Will to A. for life, remainder to B., B. predeceasing, assets in hands 
 
 of B.'s executor, id. 
 for lives, included in general devise of realty, 13G 
 case of person dealing with, becoming executor de son tort, 682 (q) 
 
 LEASEHOLD ESTATES, 
 
 generally considered, 131 — 137 
 
 personalty under Wills Act, 131 
 
 for years, bequeathable, 136 
 
 devolve on executors or administrators, id. 
 
 passed by general devise of "all a man's land," id. 
 
 realty for purpose of Succession Duty, 137, 243, 629 
 
 not liable to Legacy Duty, unless directed to be sold, 137 
 
 pass under " principal money," 165 
 
 instance of attempted limitation of, conferring absolute gift, 556 
 
844 INDEX. 
 
 LEGACY, 
 
 defined, 1, 65 
 
 may pass without executor, 1, 75 
 
 term, borrowed from Civil Law, 3, 65, 65 
 
 may S3,tisfy donatio mortis causd, 6, 21, 33 
 
 resemblance and difiference between, and donatio mortis causd, 20, 21 
 
 was recoverable only by suit in equity, 21 
 
 if specific, of chattels, by trover, id. 
 
 claimed ^om executor or administrator, id., 48 
 
 specific and general, 21, 44, and (a), 479 
 
 now recoverable by action in High Court of Justice, 22 
 
 only takes effect by Will and assent of executor or administrator cum 
 
 testamenlo annexo, 22, 76, 475, 476 
 recovery of, before and after Judicature Acts, 46 
 when real estate considered as a, 4 9 
 when annuity equal to, 50 
 forgiveness of debt, id. 
 to creditors, id., 61 
 by parent to child, how considered, 51 
 by persons in loco parentum, id. 
 
 satisfaction of, by marriage settlement, id. 
 
 when, considered a "portion," id. 
 
 satisfaction of portion by, 52 
 
 satisfaction of, by portion, id. 
 
 where, and portion are not ejusdem generis, id. 
 
 satisfaction of debt by, 53 (h) 
 
 where term, may be extended to include lands, 54, 55 
 
 in Roman Civil Law not equivalent to, in our law, 65 
 
 definition of, in Roman Civil Law, id. 
 
 comprehends all testamentary gifts in Civil Law, 70 
 
 in Civil Law reduced to one kind by Justinian, id. (A) 
 
 legatum, definition of, in Roman Civil Law examined, 72 
 
 no, in Civil Law without heir, 76 
 
 not applied to direct bequest in Roman Law, id. 
 
 whatever may devolve by law on executor or administrator may be 
 », 80 
 
 to person under Will prepared by him, 400 
 
 any person may take, 401 
 
 payment of, 475 
 
 abatement of, 476, 477 
 
 to whom, should be paid, 477 
 
 to infant or married woman, how payable, id, 
 
 to a bankrupt, 478 
 
 when due and when payalle, id. 
 
 distinguishing epithets applied to, id., 479 
 
 general and specific, 479, and see above. 
 
 vested and conti/ngent, 256 (o), 479 
 
 when legatee dying before payment of, 480 
 
 "payable " or " to be paid," force of words, id, 
 
 lapsed, see Lapsed Leqacies. 
 
INDEX. 845 
 
 LEGACY— continued. 
 
 interest in, when vested, considered to be delitum in pvcesenti sohendum 
 
 in future, 256 (o), 480 
 demonstrative, 483 — 486, and see Demonsteativb Legacies. 
 cumvlative, 486 — 491, and see Ctimulativb Legacies. 
 substituted, 488, 491, 492, and see Substituted Legacies. 
 implied, 492 — 495, and see Implied Legacies. 
 inconsistent or repugnant, 495, 496, and see INOONSISTBIIT Legacies. 
 residuai-y, 496, and see EESiDnAKT Legacy. 
 ;5'ee also Class amd Legacy Duty. 
 
 LEGACY DUTY, 
 
 donatio mortis causd subject to, 2 
 
 secus, gift inter mvos, 6 
 
 when, payable on gift of realty, 49 
 
 on money ordered to be laid out on land, id. 
 
 on rent-charge, id. 
 
 on annuity, id., 50 
 
 secus on money subjected by marriage settlement to limited power of 
 
 appointment, 49 
 what is a legacy for purpose of. Acta, 50 
 forgiveness of debt, when subject to, id. 
 bequest to pay testator's debts, not subject to, id. 
 secus to pay another's debts, 51 
 leaseholds not chargeable with, 137 
 rate of, same as of Succession Duty, id. 
 Statutes on, 607 
 nature of, id., 608 
 
 payable on all kinds of legacies, 608 
 residue liable to, id. 
 
 payable on share of intestate's estate, 609 
 domicile the test of liability of property to pay, 610, 611 
 where foreigner is domiciled in England and leaves personal property 
 
 here it is liable to, 611 
 not recoverable on property situated abroad, id., 612 
 secus if property be afterwards brought here, 612, 615 
 case of person leaving property in England and abroad, and appointing 
 
 an executor for each, id. 
 person domiciled abroad directing money to be invested in English 
 
 securities, 612, 613, 614 
 property not liable to, may be liable to Succession Duty, 614 
 whether payable where legatee under a foreign Will is resident here, 616 
 payable on annuities, id., 206, 623 
 what persons are to pay, 616 
 executor de son tort liable to pay, 617 
 deducting, and not paying, effect of, id. 
 not deducting, at all, id. 
 where legacies are charged on realty, id. 
 executor paying legacy without deducting, may recover it from legatee, 
 
846 INDEX. 
 
 LEGACY DUTY— continued. 
 
 payment of, by instalments, 618 
 
 statutes relating to, how to be construed, 619 
 
 exemptions from, 620 
 
 payable on sums oyer £20, 621 
 
 legacy given free of, id., 622 
 
 what expressions will relieve legatee from payment of, 622 (note) 
 
 legacy given free of, in Will primd facie exempts another given in codicil, 
 
 623 
 legatee disclaiming gift not liable to, id. 
 various annuities liable to, id. 
 
 to be calculated by tables iu Succession Duty Act, 1853, 624 
 mode of calculating, id. 
 
 example of calculating, on ordinary annuity, id. 
 example of calculating, on annuity payable out of a legacy, 62^ 
 where annuity is given directly to annuitant and duty to be paid by 
 
 executor, id. 
 when legacy is given to purchase an annuity, 626 
 example of calculating, on an annuity purchased out of personalty, 627 
 when, first imposed on legacies to children, id. 
 on annuities payable out of realty, id. 
 duty on annuity created by exercise of Power, 628 
 rates of, dependent upon relationship of testator and legatee, 636, 637 
 
 LEGAL REPEESENTATIVES, 
 
 primary meaning of, is executors and administrators, 656 
 primary meaning of, controllable by context of Will, id. (note) 
 
 LEGATEE, 
 
 definition of, 55 
 
 Wai written by, 329 
 
 signing Will merely to show acceptance of executorship, id. 
 
 any person may be, 401 
 
 knowing contents of Will, 408 
 
 misdescription of, 505, 606 
 
 dying in testator's lifetime, 518, 778 
 
 as one of a class, id., and see Ciiss. 
 
 executor and residuary, 619 
 
 universal, 667 
 
 See also Legacy and Lboaot Dutt. 
 
 effect of grant of administration to residuary, 711, 723 
 
 ZEGATUM, 72. See ako Leqaot. 
 
 LETTER, 
 
 established as a codicil to a Will, 256 (m) 
 
 LETTERS, 
 
 word, as apphed to a legal document, 62 
 
 LETTERS OF ADMINISTRATION. See Adiunistration. 
 
INDEX. 847 
 
 LEX, 
 
 meaning of, 76 (i) 
 Falddia, 76 
 
 LEX LOCI REI SIT^ or LEX SITUS, 243 
 
 LIBEL, 
 
 right to bring action of, will not devolve on testator's, or intestate's 
 personal representatives, 183 
 
 LJEOE POUSTIE, 
 meaning of, 77 
 
 LIEN, 
 
 definition of, 144 
 
 right of, bequeathable, id. 
 
 equitable, and legal, id. 
 
 LIMITATION, 
 
 as to forfeiture on bankruptcy, 205 
 how distinguished from condition, id., 447 — 449 
 difiereut words required for, and condition respectively, 448 
 is Iwcrum cessans, condition is da/mimm datum, id. 
 when executory devise or bequest considered as a, not as a condition, 
 450 
 
 LIMITATIONS. See Peesokaltt. 
 LIMITED ADMINISTEATION, 683 et seq. 
 LIMITED EXECUTOR, 685 
 LIMITED PROBATE, 683 et seq., 731 
 
 LINEN, 
 
 bequest of, " plate, &c.," will not include sum of money, 144, 145 
 " goods " will include, 147 
 
 LOCALITY. See also Domicile. 
 
 efifect of, and rule of ejusdem generis,.lii 
 element of, restrains general sense of " goods," 147, 148 
 extended by words " or elsewhere," &c., 151 
 executor may be appointed for a particular, 717 
 
 LOCKE KING'S ACT, 217, 
 
 mortgagee's rights imder, 218 
 
 LONDON, 
 
 custom of, as to distribution of intestate's effects abolished, 745 (d), 
 770 
 
 LOST WILL, 
 
 contents of, may be established, 413, 733 
 evidence required to establish, 414 — 417 
 practice of Probate Division, H. C. J. in regard to, 417, 731 et seq. 
 
848 INPEX. 
 
 LOST Wlhh— continued. 
 
 questions conoerning, how intermingled with those o£ revocation, 416, 
 732 
 
 admissibility of secondary evidence to establish Will now fully acknow- 
 ledged, 418 
 
 now regarded in same way as other lost documents, id , 419 
 
 chief question to be determined when Will alleged to be, 422 
 
 cases of, depend on circumstances and evidence adduced, id. 
 
 but codicil forthcoming, 423, 424, 734 
 
 lost codicil, but Will found, 426, 734 
 
 or one not forthcoming, presumption of revocation as to, rebuttable, 426 
 
 court not bound to suggest a theory as to, id. 
 
 questions as to contents of, 427 
 
 statements of contents of, how received, id. 
 
 declarations of testator made before and after execution received as 
 evidence to support, id., 428, 732 
 
 administration untU, be found, 719, 731 
 
 executor's duties in cases of, 733 
 
 LUCID INTERVAL, 
 
 what it is, 385, 388 
 
 LUNACY, 
 
 administration during, of executor, 726 et aeq. 
 
 LUNATICS, 
 
 and non compotes mentis cannot generally mate Will, 367, 385 
 
 once so always so, until contrary proved, 385, 386 
 
 presumption of law as to sanity, id. 
 
 cases concerning, dependent on circumstances of each, 386 
 
 effect of proving a diseased mind to have existed, id. 
 
 insanity considered, id. 
 
 partial insanity and monomania, 388 
 
 office of Probate Division, H. C. J., in cases of, 386, 387 
 
 intoxicated persons comporting themselves as, 392 
 
 legal signification of term lunatic, 726 
 
 committee of lunatic executor, 727 
 
 M, 
 
 MAINTENANCE, 
 
 offence of, defined, 180 {I) 
 
 MAJORITY OF INTERESTS, 706, 706, and see Administbation. 
 
 MALUM PROHIBITUM, and MALUM IN SE, 434, and see Conditional 
 Legaoies. 
 
 MANORIAL COURTS, 665 
 
INDEX. 849 
 
 MARINE, 
 
 nuncupative Will of, 43 (q), 273 
 "actual service" of, defiaed, 272—274 
 
 MARKSMAN, 
 
 testator as, 313, 321 
 witness as, 321, 330 
 
 MARRIAGE, 
 
 See also iLLEurriMATE Children. 
 
 with, deceased wife's sister, 75 (note) 
 
 revokes a Will, notwithstanding a declaration by the parties that it 
 
 shall not, 302, 355 
 apparent exception to the rule, 302, 355, 358 
 conditions in restraint of, 441, 442 
 general a,TiA particular restraint upon, distinguished, 442 
 gift over generally required to validate condition in restraint of, id. 
 three exceptions to rule, id. 
 
 restraint upon, may be imposed upon a widower or a widow, 446 
 an injunction to ask consent to, lawful, id. 
 connexions by, not relations or next-of-kin, 709, 710 
 
 MARRIAGE ARTICLES, 
 
 trusts in, and in a Will, 118 
 meaning of term, 278 {d) 
 
 MARRIAGE SETTLEMENT, 
 
 money subjected to limited power by, not subject to Legacy Duty, 49 
 
 satisfaction of legacy by, 51 
 
 executory trust nnder,118 
 
 joint and separate power in, 298 
 
 Will made by married woman under terms of, 800, 370, 383 
 
 may operate as a Will, 312 
 
 no distinction between, and voluntary settlement in' Stat. Dist., 776 
 
 MARRIED WOMAN, 
 
 power of, to make Will, 367, 368 
 testamentary status of, 368, 369 
 Will of, how permitted to be made, 368 
 testamentary capacity of, not altered by Wills Act, 1838, id. 
 testamentary capacity of, before 1838, 369, 370, 380; and now, id. 
 modification of general rule of law concerning Will of, 370 
 separate estate of. See Sbi> abate Estate. 
 may make Will by virtue of her marriage settlement, 370, 383 
 jus disponendi of, 371 
 true theory of her alienating power, id, 
 her separate estate, 'Id. 
 
 words required to create separate estate of, 372 
 creation of separate estate of, depends on intention of donor, id, 
 trustees not required to create separate estate of, id. 
 separate estate to, may be given either before or after marriage, 373 
 
 3 I 
 
850 INDEX. • 
 
 MARRIED yifOWUS— continued. 
 
 33 k 34 Viot. c. 93, amended by 37 & 38 Viot.'c. 50, on [property of, 
 
 373, 383 
 contracts of, with husband, 374 
 leaving undisposed of separate estate, id. 
 clause of restraint on. See Restraint on Anticipation. 
 power of, over separate estate, 377 
 power of, to dispose of personalty by Will or deed, id. 
 without separate estate, when, may make Will, 378 
 Will of, must be such as could have been made befqre 1838, 379 
 Will of, speaks from death, id. 
 may exercise a power of appointment, 332 
 
 Will of, where no separate estate, invalidated by husband prede- 
 ceasing, id. 
 disposing power of, acquired before death, 382 
 distinction between power of, and its operation, 383 
 function of Court of Probate as' to Will of, made under power, 383, 685 
 under protection order, equal to feme sole as to making Will, 384 j __^ 
 legacy to, how payable, 477 
 administration of the effects of, limited, 684 (4) 
 
 MARRIED WOMAN'S PROPERTY ACT, 373, 383 
 
 MARSHALLING ASSETS, 
 
 explanation of term, 502 
 
 MEDICAL ATTENDANT, 
 
 benefitted by WiU, 401, 402 
 
 MINOR. See Infant. 
 
 distinguished from infant in Ciyil Law, 723 
 
 appoints his own guardian in Prob. Div. in litigation, id, 
 
 secus of infant, id. 
 
 MISDESCRIPTION, 
 
 of legatee, explainable by extrinsic evidence, 505 
 
 solicitor cannot give evidence of instructions for the Will to explain, id. 
 
 rule as to reception of evidence in cases of, id. 
 
 general rules of construction as to, 506 
 
 maxim Falsa demonslratio non nocet applies to persons and things in all 
 
 written instruments, 507 
 how above maxim applicable to devises and bequests, id. 
 how maxim does not apply, 508 
 
 rule as to inserting or expunging words to explain, 509-511 
 reluctance of judges to employ right to insert, 511 
 omitted name when supplied, and when not, id., 512 
 
 MISNOMER, 
 
 of legatee, general rules of construction in cases of, 506 
 instances of, id. 
 
 MISREPRESENTATION, 404, and see Fraud. 
 
 MISTAKE. See Misdesobiption and Mbkomek. 
 
* INDEX. 861 
 
 MIXED WILL, 
 
 is entitled to probate, 670 
 
 MONEY, 
 
 when ordered to be laid out in land, liable to Legacy Duty, 49 
 
 bequest of, to pay testator's debts, 50 
 
 bequest of, to pay another's debtSj id. 
 
 personalty under Wills Act, 79 
 
 assets in hands of executor or administrator, 83 
 
 chattel personal, 137, 144 
 
 term " moneys " in Will, will not pass chattels, 144 
 
 not ejusdem generis with furniture, 145 
 
 or " moneys," general terms in Will, 148 
 
 "personal property " wOl pass, on mortgage, also reversionary interest 
 
 in, also, secured on promissory note, 160 
 " moneys " and " securities for," 159 
 bequest of, id. 
 ready, id. 163 
 construction of word, 160 
 invested on mortgage, id. 
 
 word, will pass policy of insurance on testators life, id. 
 secus. as to stock, except by force of context, id. (o) 
 " moneys " equal to, in Will, 162 
 neither term includes securities for, id. 
 ' ' moneys " comprises, at banker's, whether on deposit or current 
 
 account, id. 
 will not pass I. 0. U. , id. 
 
 will not pass interest on mortgages or dividends, 163 
 alone does not pass stock unless by force of context, id. 
 " surplus," " residue," " that may remain," 164 
 "principal " passes leasehold and other personal estate, 165 
 " all my " held not to pass stock, 166 
 
 " ready," may pass securities by direction of testator, id. 167 
 does not pass legacy due to testator, 168 
 or "securities for money" may or may not pass residue, id. 
 what are securities for, 175 
 sailors and marines bequeathing prize, 272 
 earned by married woman, 383, 384 
 
 MONEY LENT, 
 
 forgiveness of debt, a legacy, 50 
 
 MONUMENTS, 
 
 heir-looms by special custom, 119 
 
 MORTGAGE, 
 
 deeds, gift of inter vinos, and mortis causd, 8, 18 
 
 is chattel real, 80, 124, 128 
 
 of title deeds, 119 
 
 part of mortgagee's personal estate, 124, 129 
 
 equity of redemption of, is not a chattel, but an estate, 128 
 
 andjmay form legal assets, id., 130 
 
 3 1 2 
 
853 INDEX. 
 
 MORTGAGE— cortWetZ. 
 
 and is alienable, &c., 128 
 and applicable to personalty, 129 
 
 equity of redemption of, for term of years forms legal assets, 130 
 also of copyhold, id. 
 
 subject to Chancery Division, H. C. J., 129 (7i), 131 
 also foreclosures, 129 (h) 
 of lease, may be redeemed by executor, 135 
 may pass under " money and securities for money," 160 
 debt, part of personal estate of mortgagee, 172 
 equitable, 174 
 
 Statute of Frauds not applicable to equitable, 175 
 redemption of, 216 
 estate in, id. 
 descent or devise of, id. 
 considered a general debt, 221 
 
 distinguished from a conveyance of land with an agreement for re- 
 purchase, 222 
 
 MORTGAGOR, 
 
 contentious as to fixtures between, and mortgagee, 98 
 
 direction to pay his debts, 218 
 
 purchaser from executor as, when bound to inquire as to the object of 
 
 the mortgage, 688 (i) 
 executor borrowing money on equitable mortgage, 589, 590 
 
 MORTMAIN, 
 
 testator in order not to infringe Act of, must bequeath to a charity out 
 of pure personalty, 490 
 
 MOTHER. See Testamentary GnABWAN and Intestate. 
 
 MOTION, 
 
 in Probate Division of H. C. J., 679 
 
 MOURNING. See Funeral. 
 
 MOVABLES, 
 
 defined, 156 
 
 what word passes, id. 
 
 synonymous with goods, 158 
 
 MUTUAL, CONJOINT, OR RECIPROCAL WILLS, 
 defined, 430, 431 
 
 N. 
 
 NAVIGATION SHARES, 160 
 
 NEAREST OF BLOOD. See Next-of-Kin. 
 
 NEGLIGENCE, 
 
 how remediable under Lord Campbell's Act, 184 
 
INDEX. 853 
 
 NEGLIGENC K— continued. 
 causing death, 185 
 
 Common Law does not give executor remedy for, 186 
 sometimes a union of tort with contract, id. 
 by solicitor, 18T 
 executor may sue for damage to estate caused by, id., 188 
 
 NEaOTIABLE INSTRUMENTS, 
 defined, 17 (c) 
 
 See Donatio Moetis Causa, Cheque, Bill op Exchange, Peomissort 
 Note, Choses in Action. 
 
 NEW RIVER SHARES, 
 
 real estate, 160 (r), 173 
 
 NEXT-OF-KIN. See also Additional Casks at p. xxxviii. 
 when personal representatives, 93 {g) 
 means nearest of blood, 302, 303, 688, 698 
 fraud on, distinguished from fraud on testator, 410 
 primdfade entitled to personal property of a deceased person, 482 
 simpl'idtei; and under the Statute of Distributions, 686, 698 
 to take as such under a Will, the instrument must expressly refer to 
 
 the Statute of Distributions, 686 (o) 
 widow of intestate preferred to, in grant of administration, 693 
 husband and wife are not, the one to the other, 697, and (}) 
 of intestate or testator are such as were so at time of his death, 698, 
 
 699 
 distinguished from "kin," 699 
 whom the law considers nearest of blood, 699, 702 
 collateral, where preferred to lineal ascendant as administrator, 699 (y) 
 term most frequently applied to collateral relatives, 751 (a) 
 are to be investigated by same rules as those entitled to administration, 
 
 755 (/) 
 
 NEXT PRESENTATION TO A BENEFICE, 
 is chattel real, 80, 124 
 assets in hands of executor, 80, 126 
 may exist independently of advowson, 124 
 when, is chattel personal, id. 
 distinguished from advowson, id., 125 
 is bequeathable, 126 
 not saleable, if benefice is vacant, id. 
 sale of, of vacant benefice, simony, id. 
 where, does not form assets, 127 
 where stranger presents, id. 
 guare impedit, id., and {y) 
 succession duty, when payable on, 128 
 
 NIECE. See also Additional Cases at p, xxxviii, 
 meaning of term, 506 
 
 NON.CONTENTIOUS BUSINESS, 673, 
 deagribed, 680 
 
85<t INDEX. 
 
 NOTICE, 
 
 rule of, does not apply to assignment of equitable interests and estates 
 
 in land, 209 
 of trial in probate actions, 679 
 
 NUNCUPATIVE WILL AND CODICIL, 43 (q), 271, 272 
 of soldiers and sailors in actual service, 273 
 of minor being soldier or sailor, id. 
 
 NURSERYMAN, 
 
 trees in grounds of, removable as trade fixtures, 101, 102 
 
 0. 
 
 OATH, 
 
 declaration or affirmation in lieu of, 323, 600 (6) 
 
 OBLIGOR, 69 
 
 OBLITERATIONS, ERASURES, &c., 
 
 of testator's signature, &c., 344 — 347 
 
 may be deciphered by Court by any means in its power, 347 
 
 do not necessarily i'evoke Will, S.'iS 
 
 OFFSPRING, 
 
 meaning of, in a Will, 522, 523, 524 (0 
 
 OLD AGE, 
 
 mind of testator unduly impaired by, 387 
 
 does not create antecedent impossibility of having children, 516 
 
 ONUS PROBANDI, 
 
 meaning of term, 401 
 
 in cases of alleged fraud, 403, 404, 407 
 
 OPTION, 
 
 given to executor to add or reject a codicil, 433 
 
 « OB," 
 
 " child or children," 527 (h), 535 
 
 grant of administration to widow or next-of-kin, 693 
 
 ORDER OF DISTRIBUTION. See Distribdtion. 
 
 ORDER OP PAYMENT OF DEBTS, 466—475 
 
 ORDINARY, 
 
 title of ecclesiastical judge, 667 
 
 now called President of the P. D. & A. Div., H. C. J., id. (m) 
 
 ORNAMENTAL FIXTURES, 99, 110 et seq., 644, 645, 657 ct seq., and see 
 Fixtures. 
 
 ORNAMENTS, 
 
 personal, will not pass under bequest of " household furniture," 155 
 
INDEX. 855 
 
 OUTLAWRY, 
 
 forfeiture of emblements in, 122 
 
 for treason and felony abolished, id. {g), 395 
 
 OVERSKER (of the poor), 
 
 personal representatives of, to hand over monies held by, to church- 
 wardens, 470 
 
 PAID, 
 
 legacy to be, at the age of 21 is a vested legacy, 256 (o) 
 
 PAPERS, 
 
 of almost every kind, may be testamentary, 312 
 what were admissible to probate before 1838, 463 
 
 PARAPBESNALIA 
 defined, 223 (d) 
 
 PARENT. &eWiLL, Heir. 
 
 duty of, to provide for children, 51 
 
 satisfaction of legacy of, by gift inter vivos to, child, 52 — 54 
 
 may be ancestor and heir apparent of child, 68 
 
 and conversely child of parent, id. 
 
 See Childeen, also Per Capita et Per Stirpes. 
 
 PAROL EVIDENCE, 
 
 to incorporate papers in a Will, 265 
 
 as to revocation of WiU, 837, 339 
 
 to explain latent ambiguity, 359 
 
 rule as to the reception of, to explain a Will, 505, and see Evidence. 
 
 when, not admissible to affix a secondary meaning to word, 5 1 4 
 
 PARS RATIONABILIS, 745 
 
 PARTIES, 
 
 meaning of term, 97 (h) 
 
 who are, in a probate action, 682 
 
 PARTNERSHIP, 
 
 firm may be executors, 458 
 
 executor de son tort of partnership property, 575 
 
 no survivorship where trading, exists, 676 
 
 PASS BOOK, 
 
 difierenoe between, and banker's deposit note, 15 
 entries in, only primd facie evidence against banker, id, 
 
 PATENT, 
 
 right, incorporeal chattel, 82 
 
 PATENT AMBIGUITY, 
 
 meaning of term, 359 
 
856 INDEX. 
 
 PAWN, 143 
 
 " PAYABLE " OR "TO BE PAID," 256 (o), 479, 480 
 
 PAYMENT OF DEBTS BY EXECUTOR, 466, 470, eee also Exeoutoe cmd 
 Debt. 
 
 PAYMENT OF LEGACIES, 
 
 to infant or married woman, 477 
 
 to bankrupt, 478 
 
 when legacy is payable, id. 
 
 PAYMENT OF TRUST MONEY INTO COURT 
 by executors of infant's legacy, 477 
 
 PECULIARS, 
 
 Court of, 665 
 
 PENDENTE LITE, 
 
 grant of administration, 728 — 731 
 
 PER CAPITA ET PER STIRPES, 
 examination of terms, 751—754 
 
 division per capita not originally known to Law of England, 754 (c) 
 doctrine of, applies to distribution amongst collateral as well as lineal 
 descendants, 755 
 
 PERPETUITY, 
 
 rule as to, 290—293 
 
 PERSONAL ESTATE, 
 
 when real estate is equal to, 49 
 
 included in " property," 54 
 
 persmml property, personalty, defined, 55 
 
 Will of, see Will. 
 
 no heir to, 67, see also Hkir. 
 
 what comprises, 79 
 
 how regarded by present law, 80 
 
 by general principle of law, cannot be entaUed, IIC, 133, 478 
 
 permitted infraction of rule, how restricted, 116, 133 
 
 special clause in "Will, &c., necessary to avert this principle, 117. ^e 
 
 also Heib-Loohs. 
 future interest may be created in, of all kinds, 118, 278 
 equity of redemption applicable to, 129 
 whole of, will not pass in Will under "goods," 146 
 bequest of, to A. and heirs of his body, or his heirs, absolute, 478, 
 
 523 
 imperfect enumeration of things comprising, inay pass whole, 494 («) 
 of intestate, heir at -law entitled to share in, 763 
 
 PERSONAL REPRESENTATIVES, 93, and sec Executor, Administrator, 
 Next-of-Kin. 
 
 primary meaning of, 556, and m notia 
 
 PERSUASION, 408, and tee Fraud. 
 
INDEX. 857 
 
 PETITION, 
 
 in probate maUera, 679 
 
 PICTURES, 
 
 ornamental fixtures, 110 
 
 heir-looms, 115, 119 
 
 will pass under bequest of household furniture, 154 
 
 PIGEON, 
 
 property in, 140 
 
 PLAINTIFF, 
 
 who entitled to be, in probate action, 682 
 
 PLATE, 
 
 assets in hands of executor or administrator, 83 
 heir-loom, 115, 116 
 
 wiU pass under bequest of household furniture, 154 
 gift of, may be a specific legacy, 213 (c) 
 
 PLEAS, 
 
 what may be pleaded without leave of the Court, 678, 679 
 by defendant now called " statement of defence," 678 
 
 " PLEBISOITVM," 
 
 meaning of, 76 (i) 
 
 PLEDGE, 
 
 may be redeemed by executor, 135 
 propei-ty in, of limited character, 143 
 
 POLICY OF INSURANCE, 
 
 may pass as donatio mortig camd, 5, 9, 17 
 on testator's life, passes under " money," 160 
 does not create the relation of successor and predecessor, 632 
 assignee of, not liable to pay Succession Duty, id., (h) 
 father eflfecting, on his son's life and retaining control over it, allowed 
 to retain as against son's creditors, 771 (s) 
 
 POOR BATE, 
 
 due from testator, when executor pays, 470 
 
 PORTION, 
 
 legacy by parent to child considered as, unless otherwise expressed, 51 
 item, of persons t» loco parentum, id. 
 definition of term, id. 
 satisfation of, by legacy, 52 
 satisfaction of legacy by, ixl. 
 theory of equity on double, id. 
 where heqitest and, not ejusdem generis, id. 
 children of intestate advanced by, 750 (r) 
 
 what sort of gifts are, or provisions for a child under Statute of Dis- 
 tributions, 769 
 all payments to or for a child are not, id,, 770 
 advancement by, what it is, 771 
 secured by settlement of land not payable out of personalty, 776 
 
858 INDEX. 
 
 PORTIONER, 
 
 definition of, 51 
 
 onus prohandi in caaea of ademption of legacies, 53 
 
 PORTRAITS, 
 
 existing as fixtures, 661 
 
 POSSESSION, 
 
 distinguished from property, 23 
 
 POSTHUMOUS CHILD, 516 etseq. 
 
 of half-blood entitled equally with, o£ whole-blood to share in intes- 
 tate's personalty, 754 (d) 
 
 POST-NUPTIAL SETTLEMENT, 555 (/). 
 
 POULTRY, 
 
 chattels personal, 137 
 
 POWER, 
 
 of devising and bequeathing existed in ancient Common Law, 19 
 
 former, abolished by feudal system, id. 
 
 efifect of Statute of Uses, and of 32 H. 8, c. 1, id. 
 
 money subjected to limited, of appointment by marriage settlement, not 
 
 liable to Legacy Duty, 49 
 described, 275, 279 
 
 distinguished from Common Law authority, 276 
 of attorney, id., described, 714 (x) 
 origin of, id,. 
 what Powers are, 277 
 
 not originally concerned with personalty, id. 
 how they create equitable estates in personalty, 279 
 of appointment, 7,80, 299 
 classification of, 280 (m) 
 distinguished, 281 
 simply collateral, not simply collateral, in gros, appendant, appurtenant, 
 
 legal, and equitable, 282, 283, 288 (m) 
 strict, directory or monitory, coupled with a trust, 284, 285 
 coupled mth an interest, imperative, discretionary or arbitrary, 285 — 289 
 important distinction between general and. particular, %S9 
 general, only referred to in Wills Act, 1838, 290 
 exclusive, 293 
 
 all now exclusive, unless otherwise created, id. 
 iUusory appointment by, id., 294 
 where iion-exclusive, 295 
 mixed, id., 296 
 contingent, 296 
 
 general, where given to survivor of two persona, 297, 298 
 joint and separate, 298 
 exercised by Will, 300 
 who may exercise, id. 
 non-execution of, 301 
 jurisdiction of Chancery Division, H. C. J.'over, id., 685 
 
INDEX. 859 
 
 POWER— contimiterf. 
 
 "Will made in exercise of, not revoked by marriage, 303 
 
 of married woman, to make Will under marriage settlement, 370, 383 
 
 of appointment, married woman may make Will in exercise of, 382, 684 
 
 of married woman and its operation distinguished, 383 
 
 function of Court of Probate Division, H. C. J., as to Will of a married 
 
 woman made in execution of, id., 685 
 general, to pay and receive, necessary to make trustees executors accord- 
 ing to the tenor, 563 
 
 PRACTICE, 
 
 of High Court in probate matters, whence derived, 669 
 in probate matters before and since Jud. Acts, 673 — 683 
 rules governing, in Probate Division, 681 
 See aim under the various titles connected with probate. 
 
 PRECATORY WORDS IN WILLS, 287. -See ako Additional Casis at 
 p. xxxix. 
 
 PREDECESSOR, 69 
 
 PREFERENCE, 
 
 no, of specialty debt over that by simple contract, 131 {p), 711 
 among creditors in equal degree executor may prefer one to another, 
 
 466 
 funeral expenses of testator allowed before all other debts and charges, 
 
 id., 467 
 leaning of the Court against construing legacies specific, 485 
 Court in favour of construing a bequest as vested, 538 
 tenancy in common preferred bylaw to joint tenancy, 687 {u) 
 of the Court, ccetei'is parihis, of widow before next-of-kin in grant of 
 
 administration, 693, 695 
 of lineal descendants to collaterals and ascendants as gi-antees of 
 
 administration, 699, 700, 704, 757 
 of Court for male person as grantee of administration, 703 
 first applicant for administration, cwteris paribus, preferred, id. 
 
 PREROGATIVE COURT, 665 
 
 PRESCRIPTION, 
 
 in Civil Law, 66, and see Heir. 
 
 PRESENTATION. See Next Presentation to a Benefice. 
 
 PRESUMPTION, 
 
 omnia rite esse acta, applies to Wills, 321 
 
 in cases of alleged revocation, 338 
 
 of persons having children at any time during life, 516 
 
 no, as to simultaneousness of death, 739 
 
 of death after seven years' absence, 741 
 
 concerns the fact, not the time of death, id. 
 
 or inference of death within seven years, id., 742 
 
 nature of facts required to raise, of death, 742 
 
860 INDEX. 
 
 PRIMARY EVIDENCE. See. Evidence. 
 distinguished from secondary, 419 {x) 
 
 PRIOR PETENS, 703 
 
 PRISONER. ^seCosTiOT. 
 
 position of executor and administrator as such, 459, 694 
 
 PRIVITY, 
 
 meaning of, 97 (5) 
 
 PRO CONSILIO IMPENDENDO, 
 meaning o£ expression, 207 {z) 
 
 PROBATE, 
 
 does not apply to donatio mortis causd, 22 
 
 necessary for Will, where no executor is named, when letters of adminis- 
 tration are granted, 60 
 when, permitted of WiU of realty with executor, 64 
 ■Will of realty not entitled to, id. 
 
 Will of personalty with executor named, subject to, id. 
 no, of Will merely appointing testamentary guardian, 310 
 what papers admitted to, before 1838, 453 
 meaning of term, 462 
 effect of, on executor's position, 463, 674 
 when, or administratia cum testamento annexo, may issue, 464 
 when, mtut issue, id. 
 
 taking, delayed for three years, practice when, id. 
 renunciation of, by executor, 673, 574 
 within what period, must be taken out, 600 
 nature of affidavit required to obtain, id,, 674 
 granted of all effects in England, 603 
 granting, is a judicial act, id. 
 no, of a pure devise, 669 
 secus of a mixed Will, 670, 672 
 in solemn form, 671, 674 
 when and why necessary, id., 674 
 
 of Will which void in itself does not validate such Will, 674 
 general grants of, 683 et seq. 
 limited, 716 
 double, 739 
 of testamentary paper naming no executor, 744 
 
 PROBATE COURT, or now PROBATE DIVISION OP H. C. J. 
 has taken place of Ecclesiastical Court, 59 (?•), 63, 664 et aeq. 
 appoints administrator, 59 
 
 when person leaving Will, held by, dying intestate, 60 
 may decree intestacy in case of incoherent Will, 61 
 personal property of intestate vested in President of, 62 
 how affected by Judicature Acts, 63 
 other judges may sit with President of, id. 
 appeals from, id. (but see Appendix, Note B.) 
 present correct title of, id. (k) 
 
INDEX. 861 
 
 PROBATE COURT!— continued. 
 
 term " ordinary" applied to judge, 64 
 
 can eEfeetuate Wills of personalty, no executor being named, 65 
 
 where, has jurisdiction over Wills of realty, 412 
 
 observes same rules of evidence as Common Law Divisions, 420 
 
 practice of, when proof of lost Will is sought, 421, 422, 731 et seq. 
 
 when codicil only is found, 423 
 
 occasionally acts as a Court of Construction, 559 
 
 true function of, as to Wills, id. (t) 
 
 jurisdiction of, compared with that of Chancery Division as to Wills 
 
 560, 665, 669, 684, 685 
 Court of Probate one of record, 666 
 proceedings in, how commenced before and since the Judicature Acts 
 
 673 et seq. 
 who entitled to be plaintiff in action in, 682 
 who may be a defendant, id. 
 may send certain cases to county court, 683 
 discretion of President in granting administration, 694, 695 
 territorial limits of jurisdiction of H. C. J., 721 
 
 PROBATE DUTY, and DUTY ON LETTERS OP ADMINISTRATION, 
 no duty chargeable where estate is under value of £100, 699 (y) 
 where property is a ship, ibid 
 
 proceedings where value is over, or under estimated, 601 
 exemptions from, 602 
 importance of correctly stamping, id. 
 upon what, is payable, id. 
 
 when, is payable in respect of purchase-money of real estate, 603 
 payable on realty sold under trust of a Will, id. 
 not payable on assets abroad, 604 
 where assets are in transitu to England, id. 
 rate of, same as on administration cum testamento annexo, id, 
 tables of, and on administrations, id., 606 
 on confirmations, 606 
 Indian Government Promissory Notes included in valuation for id, 
 
 PROCTOR, 667 
 
 notice to Queen's, when bastard dies intestate, 712 
 
 PROMISSORY NOTE, 
 
 may operate as valid donatio mortis causd, 9 
 
 even when not indorsed to donee, id., 17 
 
 is good d. m. c. where donor is holder, indorsee or payee of 13 
 
 passes by delivery, 23 
 
 chattel so far as subject to fi. fa., 24 (^) 
 
 otherwise chose in action, id., ib, 
 
 PROPERTY, 
 
 distinguished from corporeal dominiofi, 22 (m) 
 and from possession, 23 
 defined, 23, 64, 69 
 
862 INDEX. 
 
 PKOPEETY— continued. 
 
 limited character of, of donee in gift mortis cavsd, 25 
 
 under Succession Duty Act, 1863, 5i 
 
 legal meaning of, 54 (o) 
 
 word, in Will may pass realty, 149 
 
 effect of, in Will, 150 
 
 synonymous with "effects," 151 
 
 PROPOUNDING WILL, 
 
 meaning of, 415 (/), 675 
 
 party propounding, delivers statement of claim, 678 
 
 PROTECTION ORDER, 
 
 married woman holding, may make Will, 384 
 
 children of woman holding, appoint their guardian on her death, 697 
 
 PROVINCIAL COURTS, 665 
 
 PUBLICATION, 
 
 no, now required except by execution, 314 
 what it was before Wills Aet, 1838, id. 
 
 PUR AUTRE VIE, 
 
 estate, freehold, 81, and see Estate Pub Auiee Vie. 
 
 PURCHASE, 
 
 technical meaning of, 68, 84, 513 (») '. 
 
 Q- 
 
 qUARE IMPEDIT, 
 
 meaning of, 127 (y) 
 damages recovered by, 127 
 
 QUEEN. See Sovereign. 
 
 " QUI PRIOR EST TEMPORE POTIOR EST JURE." 
 
 applied to first as against second encumbrancer of an annuity, 209 
 maxim observed in granting administration, 703 
 
 E. 
 
 RABBITS, 
 
 in warren, heir-looms, 113 
 
 RAILWAY DEBENTURES, Stock and Shares, 169-171 
 
 RATION ABILI PARTE BONORUM, {SE) 
 
 writ, 77 
 
lNi)BX. 863 
 
 REAL ESTATE, 
 
 when equivalent to personalty, 48 
 
 included in term "property," 5i, 149 
 
 " real property," " realty," definitioijs of, 55 
 
 " estate" in Will sufficient to pass, 148 
 
 " estate and eifecta " will pass, after gift of pure personalty, id. 
 
 even if realty be not mentioned, 149 
 
 " property " passes, id. 
 
 where, will not pass by " all estate," &c., id. 
 
 " estate " in Will means, primd facie, realty, 150 («) 
 
 may pass by " effects " by force of contest, 152 
 
 also under "all the rest," 156 
 
 married woman's power over, by Will, 371 
 
 descending or devised, charged with payment of debts, 472 
 
 receiver of rents of, may be administrator pc»rfe«<e lite, 730 
 
 RECEIPTS, 
 
 for stock, delivery of, will not pass donatio mortis caiisd, 40, and see 
 
 DONATIO MORTIS CAUSA. 
 
 RECEIVER, 
 
 administrator pendente lite, appointed, of rents, 730 
 in Chancery, 731 
 
 RECITAL, 
 
 erroneous, in Will or codicil will not create a gift by implication, 495 
 
 RECOGNIZANCE, 
 
 meaning of, 471, 472 
 
 RECOVERY, 
 
 common, abolished by 3 & 4 Wm. 4, 132 (r) 
 
 REDEMPTION, EQUITY OF, 
 
 is an estate, not a chattel, 128, and see Moktgas£. 
 
 of mortgages, 128—131 
 
 aa a right, 214-216 
 
 how, may be considered, 220 
 
 RE-EXECUTION, 
 
 republication now means, 301 
 of Will effects, of codicil, id. 
 of Will equal to making it de novo, 362 
 of Will involved in execution of codicil, 363 
 primd facie effected by codicil, 364 
 
 of wife's Will, will alone restore validity to it, where husband dies 
 first, 378 
 
 REFUSAL, 
 
 of executor to act, 60, 61 
 
 of executor to accept probate, 465 
 
 of executor to prove Will, 675 
 
861< INDEX. 
 
 KEGISTEATION, 
 of WiUs, 429 ' 
 
 REGISTRY, 
 
 Will may be deposited in, for safe custody during testators lifetime, 
 
 429 
 principal, for probate now at Somerset House, id. 
 
 RELATION, 
 
 back to the date of iutestate's death of letters of administration, 681, 
 and {p) 
 
 RELATIONS, 
 
 •when, may be included under term " family," 513, 698 
 
 has been held to mean next-of-kin, 513 (i) 
 
 ex parte paiernd and ex parte maternd, of the same importance when 
 
 grantees of administration, 707 
 legal signification of word, 708 
 
 RELEASE, 
 
 of debt, 226 
 
 infant cannot give, for legacy, 477 
 
 cannot be given by married woman unless bequeathed for her separate 
 use, id. 
 
 REMAINDER. See Donatio Mortis CausA. 
 
 may be limited on a gift inter vivos of personalty, 7 
 
 except of things quce in ipso usn cmsumwitur, id. 
 
 donee in, 67 and (c) 
 
 in a term of years vested in a person, will come to his executor, 135 
 
 REMOTENESS, 
 
 medical expenses held not to be within the rule as to, of damages in 
 
 cases under Lord Campbell's Act, 188 
 of condition subsequent, 435 
 
 RENT. See also Annuity. 
 
 -charge may be a legacy, 49 
 emblements may be distrained for, in arrear, 122 
 -charge, when liable to legacy duty, 205 
 ranks as specialty debt, 225 
 
 RENUNCIATION, 
 
 by executor must precede grant of Probate and any interference in the 
 
 deceased's affairs, 673 
 oath of executor before, id. 
 meaning of term, 574 
 
 REPEATED LEGACIES. See Cumulative Legacies. 
 
 REPRESENTATION, 
 
 right of, amongst descendants of intestate not confined within any 
 degree, 699 
 
INDEX. 865 
 
 REPRESENTATION— COTrfMiMed. 
 
 no, admitted amongst collaterals after children of intestate's brothers 
 
 and sisters, 756 
 taking, quasi by, 7S6' (7c), 758 
 
 REPRESENTATIVES, 
 
 term, under Statute of Distributions, means only descendants, 751 («) 
 
 REPRESENTATIVE CAPACITY. See Executor. 
 
 REPUBLICATION. See Re-exeotjtion. 
 former meaning of, 361 
 re-execution now means, id., 379 
 
 REPUGNANT CLAUSES, 
 
 repugnant or inconsistent legacies,' 495 
 in Will, how construed, 496 
 
 RESIDUARY CLAUSE, 
 
 when annuity passed by, 50 
 
 emblements will not pass by general, 124 
 
 ejtisdem, generis does not apply to " effects " in, 151, 152 
 
 defined, 161 (2) 
 
 signification of, in Will, 164 (wi), 165 
 
 no, in Will, 165, 168 
 
 RESIDUARY DEVISE, 
 its nature, 502 
 
 RESIDUARY DEVISEE, 
 
 right of pecuniary legatee against, and vice versd, 502, 503 
 
 RESIDUARY ESTATE. See Residue. 
 
 RESIDUARY LEGACY, 
 described, 496 
 
 RESIDUARY LEGATEE, and see Additional Cases at p. xxxviii. 
 defined, 151 (z) 
 
 contest between, and specific legatee as to growing crops, 157 
 nature of rights of, 498 
 true meaning of term, 504 
 or any other legatee may propound Will, if executor declines to do 
 
 so, 675 
 joint tenancy of, 686 
 
 RESIDUE, 
 
 meaning of term, 151 (2), 164 (m), 496 
 
 "money " or " securities for money," may or may not pass, 168 
 " of real property and securities," wiU pass the legal estate of mort- 
 gaged property of gavelkind tenure, 174 (s) 
 undisposed of, executor not entitled to, (1 Wm. 4, c. 40), 497, 744 
 whether executor takes undisposed of, is a question of intention, 497 
 where, consists of realty and personalty, id. (m) 
 instance of executor taking, beneficially, id. (0) 
 
 3 K 
 
866 INDEX. 
 
 WESlDXSE—contimed. 
 
 word, itself may be inaufficient to- pass, 498 
 
 expressions that have been held to pass, id., 510 
 
 technical rule in case where gift of money is alleged to give, gOO 
 
 term, applicable to devises, 502 
 
 residuary devise is not specific in its nature, id, 
 
 general principle as to force of a gift of, 503 
 
 intention of testator in regard to gifts of, 504 ' 
 
 gift of, to joint tenants or tenants in common, 604 and {g) 
 
 intestacy as to, of personal estate, 744 
 
 EESTRAINT ON ANTICIPATION, anij see Marwed Woman. 
 what it is, 374 
 
 cannot be removed when once imposed, 375 
 object of, id. 
 
 no form of words required to create, id. 
 may be enforced, id. 
 revival of, by subsequent marriage, 376 
 
 RESULTING TRUST, 
 497 (m) 
 father continuing control over gift to child creates, 766 (h) 
 
 RETENTION 
 
 of cheque by donee mortis cavisd, 13 
 
 RETRACTATION 
 
 of executor's assent to legacy, 476 
 
 REVERSIONARY INTERESTS, 
 
 notice of assignment of, by feme sole, 209 (g) 
 
 no purchase of, made bond fide to be set aside merely on the ground of 
 undervalue, 633 (I) 
 
 REVIVAL OP WILLS, 
 
 meaning of term, 357 
 
 may be whole or partial, id!. 
 
 re-execution required for, id, 
 
 modes of, id. / 
 
 intention as to, paramount consideration, id., 366 
 
 express words, 357 
 
 mere reference or physical annexation not sufficient to effect, id- 
 
 testator referring to wrong Will, 358 
 
 rule of evidence in such case, id, 
 
 latent and patent amhiguity distinguished in questions of, id,, 359 
 
 Statute law on, 1 Vict. c. 26, s. 22, 360 
 
 existence of Will necessary in cases of, id. 
 
 no, implied since 1838, id. 
 
 codicils revived by re-execution of Will, 361 
 
 revived Will operates from date of re-execution, 364 
 
 of codicil, by later paper, 365 
 
INDEX. 867 
 
 EEVOCATION, 
 
 meaning of term, as applied to Wills, 331 
 modes of, id., 332 
 
 by subsequent instrument of different purport, 333 
 no, by mere presumption, abandonment, or lapse of time, 334 
 depends wholly upon intention, id., 336, 340 
 by second paper disposing of all property, 334 
 of part of Will, 335 
 
 in cases of, extrinsic evidence of intention, where admissible, 336 
 acts amounting to, id. 
 
 onus prohaiidi, on whom it lies, in oases of alleged, 337 
 by later WUl, id. 
 
 presumptions as to, how considered, 338, 426 
 implied, 341 
 of executors, 342, 355 
 test of, 343 
 
 by cutting off testator's signature, 344 
 by obliteration or destruction of Will, W., 345 
 of gift by substitution, 345-347 
 meaning of " apparent " in cases of, 346 
 parol evidence in cases of substitution, 347 
 by cancellation alone, not ,sufficient to effect, 348, 355 
 ' by burning' and tearing, irf. 
 dependent relative, 348-354 
 by inconsistent limitations, 355 
 declaration that marriage shall not effect, useless, id. 
 exception to rule that marriage revokes a Will, id., 356 
 and revival of codicil, 365 
 questions concerning, how intermingled with those of lost, missing, and 
 
 destroyed WiUs, 416 
 where WUl lost, presumption as to, does not arise before it is determined 
 
 whether Will is found, 422 
 affirmative intention to effect, not necessary, 424 
 presumption as to, when Will not forthcoming, rebuttable, 426 
 of gift to one of several tenants in common, 777, 778 
 
 EIGHTS, 
 
 personalty under Wills Act, 79 
 
 signification and consideration of term,"181, 182 
 
 all, now bequeathable, 181 
 
 upon what, an executor may sue and be sued, 182, 183 
 
 instances of, 195 
 
 EOLT'S ACT, 
 
 25 & 26 Vict. c. 42 (Chancery Regulation Act, 1862), 48 
 
 EOOKS, 
 
 not protected by Common or Statute Law, 140 
 
 EULES OF COUET (PEOBATE DIVISION), 681 I 
 
 3 K 2 
 
868 INDEX. 
 
 SAFFRON, 
 
 pertains to executor as emblements, 123 
 
 SAILORS, 
 
 of Royal Navy, nuncupative Wills by, 43 (q), 273 
 "actual service "of, defined, 272— 274 
 See also Seamen. 
 
 ST. LEONARDS' (LORD) ACT, 22 & 23 Vict. c. 35. See undei Siatdtes. 
 
 SATISFACTION, 
 
 by donatio mortis causd of debts of donor, 6 
 
 of donatio mortis causd by legacy, id., 33 
 
 secus of gift iMter vivos, 6 
 
 except in fraud, &c., id. 
 
 of portion by legacy, 52 
 
 of legacy by portion, id. 
 
 and ademption pro tanto, 53 
 
 SAVE AND EXCEPT, 
 
 grants of administration, 687 
 
 distinction between, and grants cxterorum, id., 688 
 
 SCOTLAND, 
 
 by law of, how real and personal estate passes, 77 
 liege pamatie in law of, id. 
 
 SCRIPTS, 
 
 affidavit of, 679 
 
 SEAMEN, 
 
 WUls of, 273, 274 
 
 SECOND GRANT. See Cessate. . 
 
 SECURITIES FOR MONEY, 
 
 or for debt, to what extent, pass as donationes mortis camd, 24 
 
 not negotiable instruments, id. 
 
 personalty under Wills Act, 79 
 
 considered, 159, 160 
 
 " money and," may pass money on mortgage, 160, 161 (o) 
 
 but not bank-stock or canal shares, 161 
 
 I. 0. U. not included in, 161, 162 
 
 nor banker's deposit note, id, 
 
 "money"' will not pass, 162 
 
 and vice vend, id. 
 
 testator may direct that, may pass as ready money, 166 
 
 does not pass legacy due to testator, 168 
 
 or " money " may or may not pass residue, id. 
 
 what are, 171, 175 
 
 do not pass legal estate in mortgage in fee to executors, 173 
 
 unexplained bequest of, what will pass under, id. 
 
INDEX. 869 
 
 SECUEITIES FOR MONEY— coniwMcti. 
 
 will pass mortgages of leaseholds or other chattels real, 174 
 "the residue of real property and securities," will pass the legal estate 
 of mortgaged property of gavelkind tenure, id. (s) 
 
 SELECTION, 
 
 power of, by trustee, 296 
 
 SEPARATE ESTATE OF MARRIED WOMAN, and see Additional Cases 
 at p. xxxviii, 
 rule of equity on wife's, 371 
 in realty, id. 
 
 what words will or will not confer, 372 
 intention of donor to create, must appear, id, 
 trustees not necessary for creation of, id. 
 may be given to a woman before or after marriage, 373 
 under Married Woman's Property Act, id., 383 
 chattels forming, 373 (ji) 
 savings of, 374 
 
 undisposed of, to whom belongs, id. 
 clause of restraint in instrument giving, id., 375 
 liability of, for ordinary engagements, 376 
 power of married woman over her, 377 
 
 SERVANTS, 
 
 reasonable time allowed to executor for discharging, and carrying on 
 testator's domestic establishment, 599 
 
 SET-OEP, 
 
 statute of, 771 (r) 
 
 whether administrator may set off a personal debt against one due from 
 
 him qiid administrator, 771 
 difference between a demand in one's own right and in right of another, 
 
 773 
 
 SETTLEMENT, 
 
 succession created by, 69 
 
 how restrained by Thellusson Act, 78, 290 
 
 executory trusts in, construed like those in Will, 118 
 
 power created by, 280 
 
 mmaber of trustees in, must be kept up, 284 
 
 may operate as a Will, 304 (m), 312 
 
 children of intestate having property by, 750 (r) 
 
 iSee a?3o Childeen; Intestate; arati Advancement. 
 
 child pa3ring for an estate not a, 776 
 
 of every kind contemplated by Stat. Dist., id, (c) 
 
 SETTLOR, 69 
 
 SEVERAL EXECUTORS, See Co-exbcutoes. 
 
 SHAM WILL, 453—456 
 
870 INDEX. 
 
 SHARES,! 
 
 personalty under Wills Act, 79 
 
 railway, and stock synonymous in construing bequest, 169, 170 ■ 
 
 SHEEP, 
 
 chattel personal, 82, 137 
 
 SHELLEY'S CASE, 
 
 rule in, not applicable dirreotly to personalty, 553 
 
 how far rule in, analogously applicable to personalty, 555 
 
 SHIP, 
 
 by law a chattel personal, 85 
 donatio mortis causd of, id, 
 assignment of, by bill of sale, id., 36 
 
 probate and administration duty chargeable inj respect of the value of, 
 registered in any port of the United Kingdom, 599 {y) 
 
 SIGNATUBE,? 
 
 of Win necessary in presence of witnesses, 60, 61 
 
 meaning of term, 313 (5), 318 
 
 of testator by mark or gestures, 313, 321 
 
 acknowledgment of, by testator, 320 
 
 positive evidence as to signature of testator appearing before that of 
 
 witnesses, not necessary, id. i 
 of testator in attestation clause, id. 
 of testator and witnesses on separate paper, 325 
 of witnesses may be in any part of Will, id. 
 order of, of testator and witnesses immaterial, provided that testator 
 
 actually signed first, id. 
 of witnesses by mark, 330 
 for testator by another person, id, 
 testator cutting off, or obliterating, 344, 345 
 
 SIMONY, 126, and see Advowson, and Next Pkesentation to a Benefice. 
 
 SIMPLE CONTKACT, 
 
 debts by, now equal in importance to debts by specialty, 131 (p) 
 
 SIMPLIGITES, 
 
 legacy given, meaning of, 489, 491 
 
 SLANDER, 
 
 executor cannot bring action for, on behalf of his testator, 186, 193 
 
 SOLDIERS, 
 
 nuncupative Wills by, 43 {q), 273 
 "actual service" of, defined, 272 — 274 
 
 SOLICITOR, 
 
 term, substituted for " attorney," since Jud. Acts, 74 (dj, 714 (c) 
 executor's action against, for negligence whereby testator's estate is 
 
 damnified, 187 
 preparing a Will of which he is sole legatee, 401 
 
INDEX. 871 
 
 SOLICITOR— (!o?i«m«e(;. 
 
 preparing a Will at instance of legatee vinder'it, 402 
 
 not privileged to withhold facta from Court on ground of professional 
 
 confidence, id. 
 to Treasury, nominated to administer bastards' efieots, 713 
 
 SON. See Parent ; Poetionbe ; Will ; Heib ; and Advancement. 
 
 SON, ELDEST, 
 
 of intestate father, entitled to share in personalty, 763 
 
 SOUND AND DISPOSING MIND, 387, and see Insanitt. 
 
 SOVEREIGN, 
 
 may be executor, but can delegate the office, 458 
 
 Probate Division, H. C. J., cannot decide on validity of Will of, 
 
 558 (note) 
 right of, to administer to intestate baatard, 712, 713 
 
 SPECIAL CUSTOM, 
 
 regarding heir-looms, 113, 114, 119 
 
 SPECIALTY, 
 
 priority of debts by, over those by simple contract abolished, 131 (p) 
 
 SPECIFIC LEGACY, 
 
 necessary to pass emblements from devisee, 124 
 defined, 213 (c) 
 
 not favoured by Court as against other legacies, 4851 
 where legacy is, it cannot generally be cumulative, 486 
 
 SPIRITUAL COURT. See Eoolesiastical Court. 
 
 ■SPOLIATION. 421, 428 
 
 S. S. 
 
 collar of, 118 (p) 
 
 STAMPS. See Probate Duty ; Leqaot Duty ; and Socobssion Duty. 
 
 STATEMENT OF CLAIM, 
 
 term, substituted for Bill of Complaint in Equity, 47, 677, 678 
 
 STATUTES, 
 
 6 Edw. 1 (Statute of Gloucester), ^5 
 
 c. 5 (Action of Waste), 95 
 
 13 Edw. 1 (Statute of Westminster, II.), c. 1 (De Bonis Oonditionalibus), 
 
 133,196, 649 
 c. 14 (Waste), ■ 224 
 
 c. 19 (Debts of Intestate), 746 
 
 4 Edw. 3, u. 7 (Right of executor to bring action of trespass on be- 
 half of testator), 184 
 25 Edw. 3, Stat. 5, u. 5 (Executor of executor), 184, 688 
 31 Edw. 3, Stat. 1, c, 11 (Administration), 62, 693, 694, 696, 746 
 21 H. 8, c. 5 (Administrator, Probate), (Rep. in part by 20 & 21 Viet. 
 c. 77, s. 80 : Stat. Law Revision Act, 1863), 62, 4S8, 
 692, 693, 694, 704, 709, 725, 748 
 
872 INDEX. 
 
 STATUTES— cmtmued. 
 
 25 H. 8, 0. 21 (Preamble), 667 
 
 27 H. 8, 0. 10 (Statute of Uses), (Rep. in part by Stat. Law Rev. Act, 
 
 1863), 19, 276, 277 
 
 32 H. 8, u. 1 (Statute o£ Wills), (Rep. by 1 Vict. c. 26, s. 2, except as to 
 
 Wills made before 1838), 19, 59, 122 
 
 34 & 35 H. 8, c. 5 (Statute of Wills), (Rep. by IVict. c. 26, s. 2, except as 
 
 to WiUs made before 1838), 19, 59, 369 
 
 2 & 3 Ph. & M. e. 7 (Buying and selling stolen Horses), 36 
 
 13 Eliz. c. 5 (Fraudulent Conveyance), (Rep. in part by Stat. Law. Rev. 
 
 Act, 1863), 36 
 
 27 Eliz. c. i (Fraudulent Conveyance), (Rep. in part by Stat. Law Rev. 
 
 Act, 1863), 36 
 
 31 Eliz. 0. 12 (Stolen Horses), (Rep. in part, 7 & 8 Geo. 4, c. 27, s. 1), 36 
 
 12 Car. 2, u. 24, o. 8 (Testamentary Guardians), 304, 309, 724 
 22 & 23 Car. 2, o. 10 (Statute of Distributions), 73, 200, 302, 356, 466, 
 
 621, 556, 696, 697, 699, 701, 704, 707, 708, 748, 
 
 750, 766, 763, 765, 766, 774, 775 
 
 ». 5 762, 768 
 
 29 Car. 2, c. 3 (Statute of Frauds), (Rep. in part by 7 W. 4 & 1 Vict. 
 
 c. 26, B. 2), 68, 419, 701, 788 
 
 s. 4 175 
 
 Bs. 8, 19, 20, 21, 22, 23 271 
 
 s. 24 696, 704 
 
 s. 12 134 
 
 ». 17 36 
 
 ss. 19, 20, 21, 22 272 
 
 s. 25 62, 73 
 
 1 Jac. 2, c. 17 (Administrator, Intestate), (Rep. in part by Stat. Law. 
 
 Rev. Act, 1863), 200, 521, 701, 708, 748 
 
 s. 7, 73, 757, 758 
 
 5 & 6 W. &. M. c. 21 (Stamps), (Rep. by 33 & 34 Vict. c. 99), 601, 607 
 
 4 & 5 Anne, o. 4 (Bankrupts), (Rep. by Stat. Law Rev. Act, 1867), 176 
 
 7 Anne, o. 30 (Bank of England), (Rep. in part by Stat. Law Rev. Act, 
 
 1867), ' 212 
 
 13 Aime, c. 11 (Purchase of Next Presentation), (Rep. in part by 
 57 Geo. 3, c. 99, s. 1), 126 
 
 1 Geo. 1, St. 2, 0. 12 (National Debt), (Rep. by Stat. Law Rev. Act, 1870), 
 
 607 
 c. 19, 212 
 
 11 Geo. 1, u. 18, s. 18 (Rep. in part by 19 & 20 Vict. c. 94), 747 • 
 
 2 Geo. 2, c. 22 (Set-oif), (Made perpetual by 8 G. 2, c. 24. Repealed, 
 
 except as to sect. 13, by 30 & 31 Vict. c. 59), 771 
 
 4 Geo. 2, c. 28 (Distress), (Rep. in part by Stat. Law Rev. Act, 1867), 202 
 
 B. 5, 202 
 
 9 Geo. 2, c. 36 (Statute of Mortmain), (Rep. in part by 45 Geo. 3, c. 101), 
 
 444, 490 
 
 11 Geo. 2, ^. 19 (Payment of Rents), (Rep. in part by Stat. LawKev.Act, 
 
 1867), 122, 151 
 
 H Geo. 2, c, 20 (Common Eeooveries), (Rep. by Stat. Law Rev. Act, 
 
 1867), 134, 243 
 
INDEX. 878 
 
 ST ATVTES— continued. 
 
 17 Geo. 2, 0. 38, a. 3 (Personal Representative of Overseer), (Rep. in 
 
 part by 82 & 33 Vict. c. 41, 3. 16), 470 
 
 25 Geo. 2, c. 6 (Attestation o£ Wills), (Rep. except as to Wills made 
 
 before 1838, by 7 W. 4 & 1 Viot. c. 26, s. 2), 828 
 
 20 Geo. 3, u. 28 (Stamp Duties), (Rep. by Stat. Law Rev. Act, 1871), 
 
 607 
 23 Geo. 3, o. 58 (Stamp Duties), (Rep. by Stat. Law. Rev. Act, 1861), 
 
 608 
 
 c. 82 (Receipt of the Exchequer), (Rep. by Stat. Law Eev. 
 
 Act, 1861), 33 
 
 29 Geo. 3, c. 51 (Stamps), (Rep. by Stat. Law Rev. Act, 1871), 608 
 
 36 Geo. 3, u. 52 (Legacy Duty), (Rep. in part by Stat. Law Rev. Act, 
 
 1871), 49, 206, 241, 606, 608, 613, 621, 628 
 
 B. 1 607, 608 
 
 s. 2 620 
 
 s. 6 617 
 
 ss. 6, 22, 23, 33, 35, 618 
 
 =.7 2 
 
 s. 8 206 
 
 ss. 8, 9, 10 623 
 
 s. 10 626 
 
 s. 14 621 
 
 o. 21 620, 621 
 
 S3. 24, 26, 27 618 
 
 s. 31 206,207 
 
 s. 32 477 
 
 38 Geo. 3, c. 87 (Limited Admiiiistration, &c.), 62, 715, 720, 721, 723 
 
 (Extended by 20 & 21 Vict. c. 77 and 21 & 22 Viot. 
 
 c. 56), 714 
 
 s. 6 428, 725, 726 
 
 39 Geo. 3, o. 73, ». 1 (Stamps), (Rep. in part by the Stat. Law Rev. Act, 
 
 1871), 620 
 
 39 & 40 Geo. 3, c. 9S (Thelluson Act), (Rep. in part by 11 & 12 Vict. 
 
 c. 36, B. 41), 78 
 
 45 Geo. 3, o. 28 (Legacy, Stamps), (Rep. in part by Stat. Law Rev. Act, 
 
 1872), 607, 621 
 
 B. 1 627 
 
 a. 4 49 
 
 B. 4 617 
 
 s. 9 628 
 
 47 Geo. 3, c. 74 (Debts of Traders), (Rep. by 11 Geo. 4 & 1 W. 4, o. 47, 
 
 s. 1), 230,231 
 
 53 Geo. 3, c. 141 (Inrolment of Grants of Annuities), (Rep. by 17 & 18 
 
 Viet. c. 90), 202 
 
 55 Geo. 3, c. 184 (Legacy and Administration Duties), 465, 607, 608, 
 
 621, 637 
 B. 37 466, 600 
 
 a. 38 600 
 
 a. 39 601 
 
 8, 40 601 
 
601 
 602 
 620 
 
 874 INDEX. 
 
 STAT OTES— continued. 
 
 55 Geo. 3, c. 184, s. 41 (Legacy and Adminiatration Duties), 601 
 
 B. 42 
 s. 43 
 sch. 
 
 Boh. pt. 3 137, 602, 606, 630 
 
 57 Geo. S, 0. 24, s. 51 (MetropoKs Act), 470 
 
 3 Geo. 4, t. 921 (Memoriala of Grants of Annuities), (Rep. by 17 & 18 
 
 Viet. 0. 90, s. 1), 202 
 
 7 Geo. i, c. 29, b. 23 (Repealed and partly re-enacted by 24 & 25 Yiet. 
 
 c. 96, B. 29), 733 
 
 0. 75 (Memorials of Grants of Annuities), (Rep. by 17 & ISVict. 
 
 c. 90, s. 1), 202 
 
 9 Geo. 4, c. 92, s. 40 (Rep. by 26 & 27 Vict. o. 87, B. 1), (Stamps), 620 
 
 1 W. 4, c. 40 (Executors. Residue), 65, 497 
 
 c. 46 (lUuBory Appoinjtments), 294 
 
 s. 2 294 
 
 c. 47, (Debts. Real Estate), 230, 231, 311 
 
 1 & 2 W. 4, c. 32 (Landlord and Tenant), (Rep. in part by 23 & 24 Vict. 
 C.90, s. ]), 141 
 
 2 & 3 W. 4, c. 92 (Judicial Committee of the Privy Council), 666 
 
 3 & 4 W. 4, c. 27, s. 2 (Statute of Limitaljions), 202 
 
 B. 36 95 
 
 s. 42 202 
 
 c. 41 (Judicial Committee of the Privy Council), 666 
 
 c. 42 (Personal Representative), (Rep. in part by 30 & 31 
 Vict. u. 142, s, 6), 184 
 
 0. 53 (Customs, &c.), (Eep. by 8 & 9 Vict. c. 84, =. 2) 602 
 0. 74 (Fines and Recoveries), 132, 337 
 
 0. 104 (Romilly's Act, 1833. Assets, Debts), 130, 220, 
 
 230, 231 
 c. 106, s. 1 (Inheritance. Realty), 68, 707 
 
 4 & 5 W. 4, u. 15 (Office of Receipt of Exchequer), (Rep. in part by 
 
 29 & 30 Vict. c. 25, s. 1, 29 & 30 Vict. c. 39, B. 46, 
 
 (residue) 29 & 30 Vict. u. 82, s. 14) 33 
 
 c. 60 (Taxes. Stamps), 601 
 
 5 & 6 W. 4, c. 54 (Marriage, Deceased Wife's Sister), 75 
 
 6 & 7 W. 4, c. 65 (Game), (Kep. in part by 32 & 33 Vict. c. 14, 
 
 s. 39), 141 
 
 0. 76, o. 32 (Stamps), (Rep. in part by 16 & 17 Vict. 
 
 u. 71, and by 32 & 33 Vict. c. 26, n. 1), 608 
 
 1 Vict. 0. 26 (Wills Act, 1838). This Statute is printed at length with 
 
 its alterations at p. 782. 1, 43, 56, 256, 257, 259, 260, 
 
 269, 271, 273, 275, 290, 302, 304, 313, 3l4, 321, 323, 324, 
 
 325, 329, 340, 344, 348, 350, 360, 361, 362, 364, 365, 368, 
 
 369, 380, 382, 383, 396,- 413, 419, 422, 424, 453, 560 
 
 ». 1 79, 131, 144, 171, 178, 212, 223, 231, 253, 259, 312 
 
 B. 2 (Rep. by 37 & 38 Vict. e. 36), 134, 369 
 
 s. 3 , 181 
 
 s. 6 136, 243 
 
 - s. 7 288,367 
 
mDBX. 875 
 
 STATUTES— continued. 
 
 1 Viot, c. 26, B. 8 (Wills Act, 1838). This Statute is printed at length 
 
 with its alterations at p. 782. 369, 382 
 
 S3. 8, 24 379 
 
 o. 9 61, 259, 313, 314, 317, 318, 321, 330, 837 
 
 ss. 9, 10 
 
 58, 568 
 
 s. 11 
 
 271, 273, 274, 275, 367 
 
 s. 12 (Eep. by 28 & 29 Vict, 
 
 0. 112 [see 28 & 29 Vict. 
 
 0. 72]), 
 
 274 
 
 s. 13 
 
 314 
 
 s. 14 
 
 323 
 
 s. 15 
 
 328, 329, 523 
 
 s. 16 
 
 330 
 
 s. 17 
 
 327 
 
 s. 18 
 
 302, 304, 365, 366 
 
 rf. 19 
 
 334 
 
 s. 20 
 
 331, 335, 424, 433, 734 
 
 ss. 20, 22 
 
 361 
 
 .8.21 
 
 332, 345, 346, 347, 355 
 
 s. 22 
 
 351, 357, 360, 365 
 
 s. 24 
 
 149, 298, 383, 502, 603 
 
 ss. 24, 27 
 
 381 
 
 ti. 25 
 
 483 
 
 s. 28 
 
 136 
 
 B. 27 
 
 289, 298 
 
 ss. 30, 31 
 
 80 
 
 B. 32 
 
 483 
 
 s. 33 
 
 266, 257, 483, 522, 686 
 
 s. 34 
 
 253, 267, 362, 378 
 
 a. 36 (Rep. by 37 & 38 Viot. c. 35). 
 
 1 & 2 Viot. c. 110 (Eemedies of Creditors; Insolvent Debtors, &c.), (Rep. 
 
 in part by 24 & 25 Viot. c. 134, s. 230, 32 & 33 Viot. 
 
 0. 83, =. 20), 150, 644 
 
 B. 11 224 
 
 ss. 11, 12 644 
 
 B. 12 > 24 
 
 s. 14 212 
 
 s. 14, 15 214 
 
 2 & 3 Vict. 0. 60 (Payment of Debts out of Realty ; Infant Devisee or 
 
 Heir), 311 
 
 3 & 4 Viot. 0. 82,' s. 1 (Execution. Judgment), 212 
 
 5 & 6 Vict. c. 79, B. 23 (Stamps), (Rep. in part by 32 & 33 Viot. u. 14, 
 
 S3. 12, 39, but see o. 103, b. 16), 600 
 
 c. 82, 3. 38 (Stamps),^ (Rep. in part by various enact- 
 ments), ' 620 
 
 6 & 7 Viot. c. 85 (Lord Denman's Act), (Rep. in part by 14 & 15 Viot. 
 
 c. 99, B. 1, 16 & 17 Viot. c. 83, b. 4), 42, 323 
 
 7 & 8 Vict. 0. 29 (Game), 141 
 
 8 & 9 Vict, o. 16, s. 61 (Companies Olauaea Consolidation Act, 1845), 171 
 
 0. 76, 8. 4 (Legacy Duty), 2, 49, 60, 137, 628 
 
876 INDEX. 
 
 STATUTES— cojiWftued. 
 
 8 & 9 Viot. 0. 106, s. 3 (Real Property), (Eep/in'part by 13 & 14 Viot. 
 
 c. 97, s. 6), ' 132 
 
 s. 6 181 
 
 9 & 10 Viot, 0. 93 (Lord CampbeU'a Act), 185 
 
 ss. 1, 2, 4 184, 185, 186, 188 
 
 11 & 12 Viot. 0. 87 (Debts. Real Estate), 230, 231 
 
 12 & 13 Viot. c. 1 (Inland Revenue. Stamps), 601 
 
 v;. 106, rf. 126 (Bankruptcy), (Rep. by 32 St. 33 Viot. c. 83, 
 s. 20), S6 
 
 13 & 14 Viot. c. 60 (Trustee Aot), (Rep. in part by 15 & 15 Vict. c. 55 
 
 s. 2), 311 
 
 0. 97, s. 12 (Stamps), 601 
 
 14 & 15 Viot. u. 25 (Landlord and Tenant), (Rep. in part by 23 & 24 
 
 Viot. 0. 154, s. 104), 97, 103, 107, 109, 122 
 
 s. 3 107 
 
 0. 99 (Law of Evidence Amendment Aot). See also 32 & 33 
 
 Viot. u. 68 43 
 
 5. 8 323 
 
 15 & 16 Viot, 0. 24 (WUls Act Amendment Act), printed in full in 
 
 Appendix, 787, 313, 314, 321, 322 
 
 B. 1 61, 316, 322, 323 
 
 c. 76, ss. 219, 220 (Common Law Procedure Aot, 1852), 
 
 215 
 
 c. 86 (Jurisdiction Act, 1852) o. 42, (Rep. in part by 
 
 16 & 17 Vict. 0. 70, s. 1, 18 & 19 Vict. o. 134, 
 
 s. 7, and by 32 & 33 Viot. c. 91, a. 34), 682 
 
 B. 44 718 
 
 H. 45 45, 46 
 
 s. 48 216 
 
 16 & 17 Viot. 0. 51 (Succession Duty Aot, 1853). See also 28 & 29 
 
 Viot. c. 104, pt. V. 64, 241, 607, 521 
 
 id. 1, 137, 619, 620, 628 
 
 ss. 1, 19 618 
 
 B. 2 69, 609, 610, 630 
 
 s. 3 630 
 
 li. 4, 33 630 
 
 B. 5 615, 631 
 
 "• 7 629, 631 
 
 s. 8 631 
 
 ss. 8, 9, 10 206, 207, 629 
 
 s. 9 607 
 
 "■ 10 137, 634, 636 
 
 s. 11 630 
 
 s. 15 631 
 
 B- 16 631 
 
 BS. 16, 23, 24, 26, 27 634 
 
 B. 17 632 
 
 B. 18 621, 635 
 
 Ba. IS, 21, 42 634 
 
INDEX. 877 
 
 STATUTES— coftfinuca!. 
 
 16 & 17 Vict. c. 51, s. 19 (SuooeBsion Duty Act, 1853). See also 28 & 29 
 Vict. c. 104, pt. V. 137, 243 
 
 s. 20 624 
 
 B. 22 631, 634 
 
 s. 23 631 
 
 ti. 24 128, 631 
 
 s. 25 631 
 
 s. 26 631 
 
 BS. 28, 33, 34, 37, 38 633 
 
 s. 29 631 
 
 B. 30 632 
 
 s. 31 206, 624 
 
 as. 32, 39, 40, 41 633 
 
 s. 35 633 
 
 B. 36 633 
 
 B. 42 636 
 
 s. 43 633 
 
 BS. 45, 46, 47, 48 633 
 
 BS. 49, 50 633 
 
 B. 51 634 
 
 ». 52 634 
 
 B. 53 49 
 
 B. 54 609,620 
 
 BS. 54, 55 634 
 
 c. 83, (Evidence Amendment Acy. See also 32 & 33 Viet, 
 c. 68, s. 1 323 
 
 17 & 18 Vict. c. 36 (Bills of Sale»Act), 640, 643, 649 
 
 B. 7 36 
 
 c. 90 (An Act to repeal the Laws relating to Usury and 
 the Inrolment of Annuities), 202 
 
 c. 104 (The Merchant Shipping Act, 1854), n. 56, 35 
 
 c. 113 (Locke King's Act, operating from Jan. 1, 1855), 
 
 217,218, 219,223 
 c. 120 (Merchant Shipping Repeal Act, 1854), s. 55, 35 
 
 18 & 19 Vict. u. 15, SB. 12, 14 (An Act for the Protection of Purchasers 
 
 against Judgments, &c.) See also 32 & 33 Vict. 
 
 c. 83, s. 20 202 
 
 u. 63, B. 23 (Friendly Societies). See also 21 & 22 Vict. 
 
 c. 101, SB. 2, 5 ; 30 & 31 Vict. u. 117, s. 1 470 
 c. 91, B. 11 (Merchant Shipping Amendment Act), 35 
 
 19 & 20 Vict. u. 94, B. 4 (For the Uniform Administration of Intestates' 
 
 Estates), 747 
 
 20 & 21 Vict. c. 77 (Probate Act, 1857), 63, 560, 601, 664, 715 
 
 3. 2 673 
 
 B. 23 45, 665 
 
 B. 29 669 
 
 SB. 29, 30 462, 681 
 
 s. 35 679 
 
 s. 38 412 
 
878 INDEX. 
 
 STATUTES— contmued. 
 
 
 
 20 & 21 Vict, c. 77, ss. 46-53 (Probate Act, 1857), 
 
 464 
 
 s. 59 
 
 
 682 
 
 B. 61 
 
 
 672 
 
 ss. 61—64 
 
 , 
 
 412, 669, 670 
 
 B. 62 
 
 
 672 
 
 B. 63 
 
 
 672 
 
 E. 64 
 
 
 463, 672 
 
 g. 66 
 
 
 670 
 
 B. 70 
 
 
 730 
 
 B. 71 
 
 
 730 
 
 B. 73 
 
 62, 692, 695, 711, 714, 715, 
 
 
 
 719,730,736,744 
 
 ». 74 
 
 
 62 
 
 B. 75 
 
 
 716 
 
 S.79 
 
 
 582 
 
 B. 80 
 
 
 744, 746, 747, 748 
 
 B. 81 
 
 
 601, 735, 737 
 
 s. 82 
 
 601 
 
 , 737, 738, 747, 749 
 
 B. 91 
 
 
 429, 670 
 
 c. 85, SB. 21, 25 (Divorce Pourt Act, 
 
 1857), 384, 
 
 
 
 681, 697 
 
 B. 53 
 
 
 681 
 
 21 & 22 Vict. c. 27 (Chancery j\mendmeut Act, 1858), 48, 412 
 
 c. 56 (Confirmation 
 
 and probate Act, 
 
 1858), 681 
 
 B?. 10, 12, 20 
 
 
 682 
 
 c. 95 (C!ourt of Probate Act, 1858), 
 
 412, 681, 720 
 
 s. 1 
 
 
 719 
 
 B. 16 
 
 
 370, 582, 689, 690 
 
 B. 18 
 
 
 62, 716, 721, 722 
 
 s. 19 
 
 
 63 
 
 6S. 21, 22 
 
 
 730 
 
 22 & 23 Vict. c. 31 (Court of Probate Act, Ireland, 1859), 606 
 
 c. 35j (Lord St. Leonard's Act, " An Act to further 
 
 amend the Jjaw of Property and to Reliere 
 
 Trustees "), 230,231,689 
 
 B. 12 299 
 
 BS. 14, 15 590 
 
 B. 16 690 
 
 s. 18 690 
 
 s. 29 473, 474 
 
 B. 31 _565 
 
 c. 36, B. 1 (Stamps of Probates, &o., &c., 1859), 605 
 
 23 & 24 Viet. c. 5 (Probate, &c., with respect to Indian Government 
 
 Securities), 606 
 
 c. 38 (To further amend the Law of Property), 224 
 
 s. 3 473 
 
 s. 14 473 
 
 c. 115 (Entry of Satisfaction on Crown Debts and Judg- 
 ments) 202 
 
INDEX. 879 
 
 STATUTES— coTOimwed 
 
 23 & 24 Vict. c. 145 (Lord Cranwortji's Act. " An Act to give Trustees 
 
 Mortgagees, and others certain powers now 
 
 commonly inserted in Settlements, Mortgages, 
 
 and Wills "), 589 
 
 ss. 11—16 216 
 
 s. 26 477 
 
 24 & 25 yiet. c. 92 (The Collection of Probate, &c., Duties). But see 
 
 28 & 29 Vict. .;. 104, s. 53 607 
 
 0. 96 (The Larceny Act, 1861), s. 18, 139 
 
 B. 21 138 
 
 s. 29 428, 733 
 
 s. 80 27 
 
 B. 88 138 
 
 c. 97 (Malicious Iniuries jto Property Act, 1861), ss. 22, 
 
 63, 140 
 
 c. 101 (Statute Law Revision Act, 1861), 608 
 
 0. 114 (To Amend the Law of Wills of Personalty made 
 
 by British Subjects Abroad, 1861), 246, 248 
 
 ss. 1, 2, 3, 4 244, 245 
 
 e. 121 (Domicile ; Probate), s. 1 251 
 
 25 & 26 Vict. i;. 42 (The Chancery Regulation Act, 1862), 48, 412 
 
 c. 86 (The Lunacy Regulation Act, 1862), ss. 12, 13, 726, 
 
 i;. 114 (To Prevent Poaching), 141 
 
 (a) 26 & 27 Vict. 0. 57 (The Regimental Debts Act, 1863), 470 
 
 i;. 125 (The Statute Law Revision Act, 1863), 746, 747 
 
 27 & 28 Vict. c. 47, s. 2 (The Penal Servitude Act, 1864), 428 
 
 0. 56, s. 4 (Stamp Duties on Probates, &c., to extend to 
 
 ships), 699 
 
 s. 5 599 
 
 s. 51 ^ 600 
 
 0. 95 (To Amend Lord Campbell's Act, 9 & 10 Vict. c. 93), 
 
 184, 185 
 
 0. 99 (The Civil Bill Courts Procedure Act (Ireland), 
 
 1864), 638 
 
 c. 112 (To Amend the Law relating to future Judgments, 
 
 Statutes, and Recognisances), 224 
 
 28 & 29 Vict., c. 1 (To Amend certain Clerical Errors in 27 & 28 Vict. 
 
 c. 99), 638 
 
 0. 72 (Navy and Marines Wills Act, 1865), 271, 272, 274 
 
 c. 99 (To confer on County Courts a limited Jurisdiction 
 
 in Equity). See also 30 & 31 Vict. u. 142, s. 33, 
 
 682 
 
 c. 104 (The Crown Suits, &o., Act, 1865, Part v.), 607 
 
 B. 57, 465, 600, 602 
 
 c. 112 (The Admiralty, &c.. Acts Repeal Act, 1865), 274 
 
 30 & 31 Vict. 0. 59 (Statute Law Revision Act, 1867), 769 
 
 (a) Erroneously cited in the text at page 470 as 25 & 26 Vict. 
 
880 INDEX. 
 
 STA.TUTES—eontirmd. 
 
 30 & 31 Vict. c. 69 (Real Estate Charges Amendment Act, 1867), 217 
 
 c. 142 (County Courts Act, 1867), 682 
 
 31 & 32 Viot. 0. 4 (To amend the Law relating to the Sale of Eeversions, 
 
 1867), 633 
 
 c. 124 (Inland Eevenue, 1868), 607 
 
 s. 9 618 
 
 32 & S3 Viot. c. 14, s. 12 (Repealing in part, 55 Geo. 3, is. 184), 600 
 
 c. 46 (To abolish the priority of specialty over simple 
 
 contract debts), 131, 224, 225, 472, 711 
 
 c. 68 (The Evidence further Amendment Act), 323 
 
 c. 71 (Bankruptcy Act, 1869), sch. 1, 107, 593 
 
 s. 4 S4, 176 
 
 s. 23 105 
 
 33 & 34 Vict. c. 23 (Felony Act, 1870), 122, 694 
 
 s. 1 ^ 395 
 
 B. 6 ' 395 
 
 0. 49 (Evidence Amendment Act), 600 
 
 0. 93 (Married Woman's Property Act, 1870), 369, 373, 
 
 383, 384 
 s. 1 373 
 
 s. 2 384 
 
 s. 3 384 
 
 ss. 4, 5 384 
 
 s. 11 384 
 
 u. 99 (The Inland Revenue Repeal Act, 1870), 600 
 
 34 & 35 Vict. 0. 16 (Statute Law Revision Act, 1871), 607 
 
 35 & 36 Vict. c. 63 (Statute Law Revision Act, 1872), 607 
 
 36 Vict. c. 12 (Custody of Infants), 305, 306 
 36 & 37 Viot. c. 52 (An Act for the Relief of Widows and Children of 
 
 [Intestates), 604, 637, 639, 682 
 
 s. 1 638 
 
 s. 2 638 
 
 s. 3 638 
 
 =. 4 600, 638 
 
 s. 5 638 
 
 s. 6 639 
 
 c. 66 (Judicature Act, 1873), 44, 179, 180, 412, 595 
 
 s. 16 666 
 
 B. 24 21, 189 
 
 sub-s. 10 312 
 
 s. 25, Bub-B. 3 96, 131 
 
 Bub-B. 6 131, 176, 209 
 
 sub-s. 11 368, 683 
 
 e. 34 60, 312, 613 
 
 aub-BS. 2, 3 46 
 
 sub-B. 3 587 
 
 s. 77 47 
 
 s. 87 714 
 
 iJ. 100 471 
 
INDEX. 881 
 
 BTATUTES-continued. 
 
 36 & 37 Viot. u. 91 (Statute Law Keviaion Act, 1873), 600, 607 
 
 37 & 38 Vict. e. 35 (Statute Law Revision Act, 1874), 369 
 
 c. 37 (An Act to alter and amend the Law as to Appoint- 
 ments under Powers not Exclusive. Preamble 
 to), 280, 293, 294, 295 
 
 c. 50 (Married Women's Property Act, 1874), 369, 
 
 373, 384 
 c. 62 (The Infants' Relief Act, 1874), 311 
 
 c. 66 (Civil Bills Court— Ireland), 638 
 
 u. 78 (Vendor and Purchaser Act, 1874), 221 
 
 38 & 39 Vict. u. 27, Extending 36 & 37 Vict. c. 52, 604, 637, 639 
 
 <;. 77 (Judicature Act, 1875), 44, 112, 596, 676, 677, 679, 
 
 681 
 
 s. 18 
 
 
 
 60 
 
 Order 1, i. 1 
 
 
 
 21, 189 
 
 Order 13, r. 1 
 
 
 
 311 
 
 Order 16, i. 8 
 
 
 
 311 
 
 r. 12—15 
 
 
 
 672 
 
 Order 17, i. 5 
 
 
 
 464 
 
 Order 41, r. 2 
 
 
 
 471 
 
 u. 87 (The Land Transfer Act, 
 
 1875), s 
 
 .48 
 
 222 
 
 c. 92 (Agricultural Holdings [England] 
 
 Act, 1875), 97, 
 
 
 
 
 103, 122 
 
 s. 53 
 
 
 
 107, 108 
 
 8. 58 
 
 
 
 107 
 
 40 Vict. c. 59, s. 3 (Appellate Jurisdiction Act, 
 
 1876), 
 
 781 
 
 STATUTES, MERCHANT AND STAPLE, 471 
 
 STEAM ENGINE, 
 
 as agricultural fixture, 108 
 
 as trade fixture, 641 et seq., 650 et teq. 
 
 STOCK, 
 
 gift of, inter vivos and mortis cmtsd, 40 
 
 assets in hands of executor or administrator, 83 
 
 in the Funds and that of railway company, no analogy between, 170 
 
 Bank, how distinguished from the Funds, 508 
 
 STOCK OF DESCENT, 701, and see Consanouinitt. 
 
 STOCK IN THE PUBLIC FUNDS, 
 
 does not pass under " money " except by force of context, 163 
 
 nature of 171 {gf) 
 
 is a security for money, 212 
 
 not a chose in action, but accurately termed iruiorpareal personalty, id. 
 
 specifically bequeathed vests firstly in executor, id. 
 
 STOCK-IN-TRADE 
 
 will not pass under bequest of " household stufT," "goods," or "fur- 
 niture," 155 
 
 3 L 
 
883 INDEX. 
 
 STOCK ON FARM. See Emblements. 
 
 STRANGERS, 
 
 meaning of, in law, 7 (y) 
 
 dietinotion between, and " portioners," 51 
 
 onus probandi in cases of ademption of legacies, 53 
 
 STRICT SETTLEMENT, 
 definition of, 115 (/) 
 
 SUBSTITUTED ESECUTOR, 342, 343 
 
 SUBSTITUTED LEGACY, 
 
 function of Probate Division, H. C. J., as to, 346, 488 
 
 evidence in cases of, 347 
 
 means one not constituted cumulative, 491 
 
 doctrine of ejiisdem generis as to, id. 
 
 generally subject to the incidents of the original gift, id,, 492 
 
 SUBSTITUTED LEGATEE, 
 
 in .cases of revocation, 346 
 
 principles of construction in dealing with clauses of substitution, 539, 
 540 
 
 SUCOESSIO AB INTESTATO, 68, 71. AUo see Distribution and In- 
 testate. 
 
 SUCCESSION, 
 
 meaning of, in Roman Civil Law, 66 
 
 technical meaning of, in English Law, 67 
 
 equivalent to " descent," 68 
 
 not strictly applicable to personalty, id., 133 
 
 meaning of, modified by statute, 69 
 
 appUed to dispodtion or devolution of any kind of property, id., 70 
 
 policy of insurance does not create relation of successor and predecessor, 
 
 632 
 post obit bonds, id. 
 case of a, contributor to a general fund to insure a sum of money at 
 
 death, id. (i) 
 a bond or contract for payment of money not necessarily a disposition, 
 
 633 
 sections of the Act of 1853, as to allowances for fines, encumbrances, 
 
 &o. , id. 
 sections providing for compounding and commuting duties, &c., id. 
 how provided for by H. C. J. pendente lite, 634 
 how interest of successor of realty is regarded as to, id. 
 where successor dies before duty is paid, 635 
 exemptions from, id., 636 
 is first charges on property, 636 
 rates of, dependent upon relationship of successor and predecessor, id., 
 
 637 
 Intestate's Widow and Children's Relief Act, 1873, 637, 638, 639 
 
INDEX. 883 
 
 SUCCESSION DUTY, 
 
 leasehold estatea chargeable with, 137 
 
 rate of,, same as of legacy duty, id. 
 
 statutes on, 607 
 
 nature of, id., 608, 621 (note)' 
 
 nature of Act of 1853, 609, 619, 620, 628 
 
 domicile the test of liability of property to pay, 610, 611 
 
 property not liable to legacy duty may be liable to, 614 
 
 gifts inter vivos liable to, as " dispositions," 619 
 
 meaning of term " disposition " in the Act, id. (») 
 
 payable on successions over lOOZ., 621 
 
 ■when gift exempt from legacy duty is also exempt from succession- 
 duty, id. 
 
 how Act of 1853 is to be construed generally, 628 (o), 629 
 
 definition of terms of the Act, 629 
 
 Act of 1853 deals with dispositions and devolutions, id. 
 
 payment of, can be evaded only by bond fide sale of property, id., 634, 
 
 succession by survivorship in oases of joint-tenancy, 630 
 
 succession created by the exercise of a general power, id. 
 
 various cases of dealing with property on which, is payable, 631 
 
 notice of sections of Act of 1863 providing rules for valuation of 
 property, id. 
 
 SUCCESSOR, 
 
 definition and correlatives of, 69 
 under Succession Duty Act, 1853, 609 
 
 SUICIDE, 394, 395 
 
 SUIT, 
 
 now called ''action" in all oases, 676, 678, et passim. 
 
 SUPPLEMENTAL GRANT, 736—738 
 
 SURETIES, 
 
 ' justification of, in administration bond, 736 
 
 to administration bond, 749, and see Bond. 
 
 SURVIVOR, 
 
 meaning of, 524, 525 {y) 
 where, read " other," 525 
 " next surviving son," 627 (6) 
 
 whether gift vests absolutely in, or whether he shall take only by limi- 
 tation, 537, 538 
 
 SURVIVORSHIP, 
 
 right of, or jus accrescendi, 624 
 chief feature in joint tenancy, id. 
 period to which, refers, 527 
 intention a test in oases of, id., 628 (d) 
 
 period of distribution in cases of, (1) where no previous interest exists in 
 gift, (2) where life tenancy precedes the gift, 528 
 
 3 1 2 
 
884 INDEX. 
 
 SURVIVORSHIF— continued. 
 
 no, among partners in trade, 576 
 
 rule of Civil Law against, in regard to legacies, 687 
 
 secus in our law, id. 
 
 no presumption concerning, where persons die nearly at the same time, 
 
 739 
 how regarded in Civil law and foreign codes, id. 
 
 SWANS, 
 
 property in, 140 
 
 SWINE, 
 
 chattels personal, 137 
 
 SYMBOL, 
 
 definition of, 41 
 
 SYMBOLIC DELIVERY, 34, and see Bom atio Mortis Cadsa. 
 
 T. 
 
 TAI,LY, 
 
 description of, 33 (r) 
 
 TAPESTRY, 
 
 as a fixture put up by tenant for life whether removable, 661 
 
 TEMPORARY ADMINISTRATION, 
 generally, 683, 684, 716, 717, 719 
 during absence of executor, 720 — 723, 
 during minority of executor, 723, 725 
 during lunacy of executor, 726 et seq, 
 dv/rante corporis aut animi vitio, not now granted, 728 
 death of grantee of, id. 
 pendente lite, id. et seq. 
 until lost Will be found, 731 et seq. 
 
 TENANT, 
 
 outgoing, and incoming, contentions between, as to fixtures, 99, and see 
 Fixtures. 
 
 TENANT FOR LIFE 
 
 cannot bequeath things annexed to freehold, 84, 657 
 secus of things not strictly incidental to inheritance, 85 
 representative of, in regard to fixtures, 654 
 
 TENANT FROM YEAR TO YEAR, 
 
 his right as to fixtures. See FiXTnRES. 
 
 TENANT IN TAIL, 
 
 cannot bequeath things annexed to freehold, 84 
 
 secus of things not strictly incidental to inheritance, 85 
 
INDEX. 885 
 
 TENANT PUR AUTRE VIE, 
 
 entitled to emblements, 121, and see Estate pur Autre Vie. 
 
 TENANT'S FIXTURES. See Fixtores. 
 TENANTS IN COMMON, 
 
 gifts to, of residue, 504 
 
 when children take as, 616 
 
 no survivorship between, 687 
 
 tenancy in common preferred by the law to joint tenancy, 687 («) 
 
 revocation of gift to one of several, 777 
 
 TERM OP YEARS, 
 
 is chattel real, 80 
 
 may be virtually entailed by executory devise or deed of trust, 133 
 
 TESTAMENT. See Will. 
 
 now synonymous with Will, 1, 253 
 
 'iESTAMENTARY GUARDIAN, 
 
 absolute right of father to appoint, 304 
 
 infant cannot appoint, id. 
 
 father may waive his right to appoint, 305 
 
 how right is modified, id. 
 
 mother cannot appoint, id. 
 
 but her wishes will be respected, 309 
 
 foundation of father's right, 305, 306 (() 
 
 rule of public policy as to appointment of, 307 
 
 how apparently contravened, id., 308 
 
 Will appointing, 309 
 
 Will merely appointing, not entitled to Probate, 310 
 
 office of, amounts to trusteeship, id. 
 
 death of one of several, determines guardianship, id. 
 
 TESTAMENTARY POWER, THE, 
 
 withheld from but few persons, 367 
 from whom withheld, id. 
 ■ withheld from infants, lunatics, and mm compotes mentis generally, id. 
 from married women by general rule of law, id. 
 infant being soldier or sailor on actual service may make Will, id. 
 conferred on married women by Equity and Statute Law, 368, 373, 383 
 Wills Act, 1838, provides specifically for only two oases against, 396 
 
 TESTATOR, 
 
 definition of, 55, 69 
 
 acknowledgment by, of his signature, 317 
 may sign by making mark, stamp, or by another person, 321 
 fraud on, distinguished from fraud on next-of-kin, 410 
 declarations of, before or after execution of his Will, admissible as 
 evidence of its contents, 427, 428 
 
 THELLUSSON ACT, 39 & 40 G. 3, u. 98, 78 
 
 THRE.'VTS 408, and see Fuaud. 
 
886 INDEX. 
 
 TIMBER, 
 
 felled, chattel personal, 137 
 
 TITLE DEEDS, 
 
 chattels real, 80 
 right of devisee to, 88 
 heir-looms, 113 
 pawned, 119 
 
 TRADE. See Business, Carrying ok Business, cmd Exboutok. 
 
 TRADE FIXTURES, 99, 101 et seq. See also Fixtures. 
 
 TRADER, 
 
 farmer not, 107, but may direct his business to be carried on by 
 executor, 693 
 
 TRAITOR, 
 
 cannot make a Will of his own goods, 395 
 may be an executor, 457, 459 
 
 TREASON, 
 
 forfeiture for, abolished, 122 (g) 
 
 TREES, 
 
 fruit, attached to soil, chattels real, 80 
 
 when felled, chattels personal, 82 
 
 also lopped branches of, id. 
 
 are not emblements, 83 
 
 of nurserymen, trade-fixtures, 101, 102 
 
 TRESPASS, 
 
 distinguished from " waste," 96, 97 
 
 TRUST, 
 
 deed of, may virtually create entail in terms of years and other per- 
 sonalty, 133 
 but only for life or lives in being and twenty-one years after, id. 
 -estate, of which testator trustee, cannot be such testator's assets, 136 
 and cannot form assets except for estate of cestui que trust, id. (i) 
 Power is a declaration of, 280 
 Power coupled with, 281, 284 
 implied and not implied, 285, 286 
 equity unwilling to imply, in WUl, 287 
 
 TRUSTEES. See also Executor, wnd Additional Cases at p. xxxviii. 
 for sale, position of, as creditors of estate, 230 
 executor is trustee of the trusts of a Will in which he is named as 
 
 trustee immediately he takes Probate, 462, 463 
 executor when trustee for next-of-kin of undisposed residue, 497 
 not necessarily responsible for acts of each other, 521 (Note) 
 office of, how resembling and how differing from that of executor, 562 — 
 
 666 
 clause of indemnity in favour of, not applicable to mere executor, 566 
 
INDEX. 887 
 
 u. 
 
 UNCERTAINTY, 
 
 testator expressing himself with ambiguity, 359, 492, 496, 505 — 512, 
 
 627 
 as to the application of canons of construction, 499 
 
 UNCLE, 702, 705, and see Consanguinity. 
 legacy duty payable by, 637 
 as participator in intestate's estate, 761 
 
 UNDUE INFLUENCE, 408 et seq. See also Fraud. 
 
 UNIVERSITIES, 490, and (s) ; also see -Chaeitable Urns'. 
 
 UNMARRIED. See Conditional Lhgaoibs, Marriage, and Limitation. 
 
 USVOAPIO, 
 
 in Civil Law, 66. See also Heib. 
 
 UTENSILS, 158 (?) 
 
 V. 
 
 VAT, 
 
 of a soap-boiler, trade-fixture, 102 
 
 VENDOR AND PURCHASER, 
 
 contentions between, as to fixtures, 98 
 
 VESTED, 
 
 meaning of word, applied to personal property of intestate, 63, 760 (a) 
 
 where, means "indefeasible," 479 
 
 leaning of Court to consider bequest as, 538 
 
 VESTED INTERESTS, 
 
 leaning of Court to support, 438 
 
 parties entitled in distribution under an intestacy have, in their shares, 
 762, 763 
 
 VICARAGE. See Advowson. 
 
 VIOLENCE, 408, and see Fraud. 
 
 VOLITION, 
 
 of testator must be overpowered to constitute undue influence, i09,and 
 see Fraud. 
 
 VOLUNTEER, 
 
 meaning of, as a term of law, 7 {y), 686 (s), 
 
888 INDEX. 
 
 W. 
 
 WAGES, 
 
 executor pays, of servants, £99 
 
 WASTE, 
 
 connection between, and fixtures, 95 
 
 writ of, abolished, id. 
 
 present form of action for, 96 
 
 and trespass distinguished, id., 97 
 
 legal and equitable, distinction abolished, 96 (a-), 131 (p) 
 
 WEAK UNDERSTANDING. See Insanity. 
 
 WHOLE BLOOD, 
 
 relationship by, 706 (7i) 
 
 contest for administration by person of, and two of half-blood, 707 
 
 WIDOW, 
 
 right of, to grant of administration, 693 — 695, 704 
 marrying again, may still take grant to first husband, 694 
 her right compared with that of next-of-kin, 696 
 rights of, of intestate, 750 and note. 
 
 WIFE. See Widow, also Husband and Wipu. 
 and husband no relation to each other, 697 
 why this is so, 709 
 
 WILD'S CASE, and the rule there enunciated, 549 
 nature of the rule in, 5.'i0 
 rule in, not applicable to personal estate, id. 
 case of a mixed Will, where rule in, not applied, 551 
 
 WILL. See also Additional Cases, pp. xxxvii. — xxxix. 
 without executor can pass legacy, 1, 76 
 now synonymous with "testament," 1, 56, 253 
 how distinguished from donatio mortis causd, 21 
 nuncupative, distinguished from d. m. c, 43. See also Nuncupative 
 
 Wills. 
 nuncupative, prohibited, except of soldiers, marines, and seamen on 
 
 actual service, 43 {q), 273 
 " Will and testament," defined, 55, 66 
 includes "testament," '' codicil," &c., 66, 67, 253 
 old distinction between, and "testament," 66, 67, 53 
 " last Will," and "testament," mean same thing, 57 
 and "testator," now correlatives, 68 
 all Wills now to be executed in the same way, id. 
 of realty properly called a devise, id. 
 of personalty, a bequest, id. 
 
 notable distinction between " devise," and " bequest," id. 
 of personalty gives title to executor, 69 
 of personalty should strictly nominate executor, 69, 60; but may 
 
 operate without one, 65, 73 
 
INDEX. , 889 
 
 WILL — continued. 
 
 annexed to letters of administration, must be proved, 60 
 naming no executor may yet be proved, 60, 744 
 of personalty really constituted by naming one, 60 
 person leaving, when he may nevertheless die intestate, id, 
 effect of, declaring testator to die intestate, 61 
 incoherent, 61 
 
 of realty requires no executor, id., 64 ; but may be named therein, 6 4 
 in, of realty, devisee called a purchaser, 68 and (d) 
 in Boman Civil Law, 75 
 
 testator may now bequeath all his effects by, 76, 77 
 limitations of personalty in, 118 
 holograph, by law of England and Scotland, 156, 313 
 how affected by law of domicile, 243 — 252 
 
 also synonymous with " codicil," " appointment," and any other testa- 
 mentary disposition, 253 
 
 only one effective, can be made by testator, id. 
 republishing of, now signifies re-execution, 266 
 how republished by codicil, id. 
 
 incorporation of unexecuted paper into, 267, 268 
 
 destroyed, 268 ' 
 
 codicil, when may be independent of, 259 
 
 making reference to schedules, 262 
 
 intention announced in, to incorporate documents, 263, 264 
 
 and codicil make one Will, 269 
 
 exception to above rule, 302, 355, 356 
 
 made in exercise of power of appointment, not revoked by marriage, 303 
 
 disposal by, of custody and tuition of child, 304 
 
 term extends to appointment of testamentary guardian, id. 
 
 mereZy appointing testamentary guardian, not entitled to Probate, 310 
 
 whether a paper is to operate as such depends on intention, 312 
 
 true test of what is a, id. 
 
 what papers may operate as, id, 
 
 JixBOUTiON of, see this title. 
 
 no publication of, beyond that involved in execution, now necessary, 
 314 
 
 no attestation clause in, required, id. 
 
 " attesting and subscribing," meaning of, 316 
 
 signature of, in attestation clause, 316, 320 
 
 in execution of, the maxim " iion quod dklutn sed quod faxtwm est 
 impicitur," applies, 317 
 
 testator should know and approve contents of, 318, 393 
 
 witnesses to, see Witnesses. 
 
 in what part of, testator should sign, 321 
 
 presumption "omnia rite esse acta" applies to, id. 
 
 end or foot of, id., 322 
 
 blank spaces in, 322 
 
 writing in, after signature and attestation, id. 
 
 who may be witnesses to, 323 
 
 may be signed by witnesses in any part, 325 
 
890 INDEX. 
 
 WILL — continued. 
 
 supported in Probate Division, H. C. J. , where possible, 327 
 
 witness to, can take nothing under, 328 
 
 lecus, where he attests only codieU, 329 
 
 written by legatee, id. 
 
 creditors may attest without losing debts, id. 
 
 rerooation of, see Revocation. 
 
 later, when effects revocation, 337 
 
 " destruction of," what it means, 344 
 
 obliterations, interlineations, &o., 344 — 347 
 
 revoked by marriage, 352 
 
 wrong, referred to in cases ofTevival, 358 
 
 rule of evidence in such cases, id, 
 
 re-execution of, means republishing, 361 
 
 makes Will speak from that time, 362, 364 
 
 re-execution of, involved in execution of codicil, id. 
 
 not necessarily added to by codicil, id. 
 
 destruction of, does not revive former one revoked, id. 
 
 " distinct reference " in, meaning of term, 364, 36p 
 
 of married woman, 368 — 384. See Married Woman. 
 
 now priind facie speaks and takes effect as to all property comprised 
 
 therein from testator's death, 379, 503 
 by lunatics, non compotes, intoxicated persons. See Insanity and 
 
 Lbnatios. 
 of deaf, dumb, and blind persons, 393, 394 
 prepared by person taking gift under, 400, 402 
 what required to invalidate, on ground of fraud, 402 
 fraudulent concealment of, id. 
 
 execution of, in capacity of testator generally makes Will valid, 403 
 cannot be set aside merely because person preparing it is benefited, id. 
 obtained by fraud regarded in a different manner from a gift inter vivos 
 
 so obtained, 406, 407, 410 
 legatee knowing contents of, 408 
 
 obtained by persuasion, importunity, threats, and violence, id. 
 fraud affecting part of, 410 
 of realty obtained by fraud, 411 
 bills to establish, id. 
 
 of realty, jurisdiction of Probate Division, H. C. J., over, id. 412 
 lost, contents of may be established, 413 
 destroyed by inadvertence, 415 
 presumption as to, destroyed by testator, id. 
 " propounding," what it means, id. (/) 
 party propounding, must be able to rebut presumptions of fact as to 
 
 testator having destroyed or revoked his Will, 415, 416 
 lost, evidence required to establish, 417 
 practice of Probate Division, H. C. J., in oases of lost, id., 417. See 
 
 also Lost Will. 
 Probate of Draft of, 420—423 
 lost, chief question in cases concerning, 422 
 lost, but codicil forthcoming, 423 — 425 
 
INDEX. 891 
 
 WILL — contimied. 
 
 codicil lost, but Will found, 424 
 
 -presumption of revocation as to, not forthcoming, rebuttable, 426 
 
 contents of lost, 427 
 
 testator's statements made before and after execution of, admissible as 
 evidence of contents of, 427, 428 
 
 criminal law concerning, when Will stolen, suppressed, destroyed, &c., 
 with felonious intent, 428 
 
 deposit of, for safe custody during testator's lifetime, 429 
 
 memorials of, registered, after testator's death, id, 
 
 mutual or conjoint, reciprocal, joint and conditional, or contingmt, de- 
 fined, 430-432 
 
 cannot be an irrevocable instrument, 430 
 
 authority given by, to executors to adopt or reject codicil, 432 
 
 conditional or contingent, id., 433 
 
 conditional, not to be confouuded with condition annexed to a gift, 434 
 
 condition in, not to dispute validity of, 440 
 
 made by interrogatories, 451 — 453 
 
 instructions for, useless as evidence unless duly executed, 453 
 
 sham, meaning of, id. 
 
 duplicate, 456 
 
 implied gifts in, 492—494 
 
 erroneous recital in, or codicil does not create gift by implication, 495 
 
 inconsistent or repugnant gifts in, id. 
 
 rule as to construction of repugnant or almost incomprehensible clauses 
 in, 496 
 
 misdescriptions and misnomers in, 505 — 511 
 
 rule as to construing words in, 509 
 
 rule as to inserting or expunging, id. 
 
 in favour of a person whom testator knows to be dead, 533 (p) 
 
 administration until lost Will be found, 719 
 
 statements concerning, and the corroboration thereof, id. 
 
 WILLS ACT (1838), 
 
 does not enlarge testamentary capacity of married woman, 369, 381 
 set out at length, 782—787 
 Amendmemt Act (1852), 787 
 
 WISHES. See Pkboatort Words. 
 
 WITNESSES, 
 
 of donatio mortis causa, 42 
 
 when parties to suit compellable to give evidence, 43 
 
 Will not signed in presence of , 60 , 61 
 
 two at least required to attest execution of all Wills, 313, 324 
 
 must be present at the same time, id. 
 
 should properly subscribe in presence of testator and each other, 314 
 
 must sign after testator, id. 
 
 but order in which signatures appear immaterial, 325 
 
 dead, or left the country, or imbecile, when Will disputed, 315 
 
 attestation and subscription, meaning of, 316 
 
 name of, not essential, 321 > 
 
892 INDEX. • j 
 
 WITNESSES— co)KmMecJ. 
 
 may guide testator's pen, 821 
 
 not incapacitated by infamy or irreligion, 324 
 
 who should be chosen aa, must both attest and subscribe, id. 
 
 may sign in any part of Will, 325 
 
 testator signing on separate papers, id. 
 
 intention of, to be considered, 327 
 
 executor as, id. 
 
 supernumerary, id. 
 
 can take nothing under Will, 328 
 
 may take under a codicil, 329 
 
 are not allowed merely to acknowledge their subscription, id. 
 
 cannot subscribe one for the other, 330 
 
 all kinds of, now admitted to give evidence in all cases, 323 
 
 to prove Will in solemn form, 674 
 
 WRITING. See ExEoniiON, Witness, and Will. 
 
 YORK, 
 
 Court of Province of, abolished by Probate Act of 1857, 665, 668 
 
 YOUNGER CHILD, 
 
 every child, except eldest, considered as, 115 
 
 THE END. 
 
 
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